Hawksby v. New York Hospital

Appellate Division of the Supreme Court of New York

Hawksby v. New York Hospital

179 A.D.2d 545

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 23, 1992

StatusPublished

This text of 179 A.D.2d 545 (Hawksby v. New York Hospital) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Hawksby v. New York Hospital, 179 A.D.2d 545 (N.Y. Ct. App. 1992).

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On a prior appeal to this court (162 AD2d 179), we directed defendants to supply plaintiff with typewritten exemplars of the text of the disputed operative report reproduced on Dr. [546]*546Antonacci’s office typewriters. A prior direction by the IAS court to defendants had resulted in production of more limited typewritten exemplars from non-party Dr. Antonacci. This time, however, in April 1991, defendants’ attorney advised plaintiff’s attorney that Dr. Antonacci, in the course of moving his offices, had discarded typewriters. The IAS court denied plaintiff’s preclusion motion,, finding the parties’ rights were better balanced simply by recognition of plaintiff’s right to argue to the jury that the operative report was a recent fabrication. This was not an abuse of discretion, there being no showing of willful disobedience of a court order by defendants, or indeed any control by defendants over the actions of non-party Dr. Antonacci, whose cooperation was essential to defendants’ compliance with our prior order. (Lowitt v Burton I. Korelitz, M.D., P. C., 152 AD2d 506.) Concur — Sullivan, J. P., Carro, Kassal and Smith, JJ.

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On a prior appeal to this court (162 AD2d 179), we directed defendants to supply plaintiff with typewritten exemplars of the text of the disputed operative report reproduced on Dr. [546]*546Antonacci’s office typewriters. A prior direction by the IAS court to defendants had resulted in production of more limited typewritten exemplars from non-party Dr. Antonacci. This time, however, in April 1991, defendants’ attorney advised plaintiff’s attorney that Dr. Antonacci, in the course of moving his offices, had discarded typewriters. The IAS court denied plaintiff’s preclusion motion,, finding the parties’ rights were better balanced simply by recognition of plaintiff’s right to argue to the jury that the operative report was a recent fabrication. This was not an abuse of discretion, there being no showing of willful disobedience of a court order by defendants, or indeed any control by defendants over the actions of non-party Dr. Antonacci, whose cooperation was essential to defendants’ compliance with our prior order. (Lowitt v Burton I. Korelitz, M.D., P. C., 152 AD2d 506.) Concur — Sullivan, J. P., Carro, Kassal and Smith, JJ.

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179 A.D.2d 545, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hawksby-v-new-york-hospital-nyappdiv-1992.

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