Lisec v. Abrams

112 A.D.2d 145, 491 N.Y.S.2d 58, 1985 N.Y. App. Div. LEXIS 56430

Opinion

In a negligence action to recover damages for personal injuries, plaintiff appeals from an order of the Supreme Court, Kings County (Clemente, J.), dated November 3, 1983, which granted defendant City Limits Bar’s motion to the extent of precluding him from offering any testimony of Drs. Green and Platt at the time of trial.

Order affirmed, with costs.

This action was initially dismissed, without prejudice, for plaintiff’s failure to comply with discovery orders. After the reinstitution of the action, plaintiff still failed to provide defendant City Limits Bar (hereinafter defendant) with doctors’ reports notwithstanding the court’s conditional order of preclusion and precalendar order directing him to serve the medical reports, as well as two letters sent by defendant’s counsel to plaintiff, requesting that he comply with the court orders. Under these circumstances, Special Term could well find that plaintiff’s failure to provide the reports was willful, and in its discretion, preclude testimony at the trial of the doctors involved. The mere fact that plaintiff’s doctors were uncooperative in providing the reports does not relieve plaintiff of his burden of providing his adversary with the neces sary documentation to prepare a defense (22 NYCRR 672.2; cf. Cramer v Toledo Scale Co., 89 AD2d 1059), and plaintiff freely admits that he never moved to compel the production of the reports in question. Bracken, J. P., O’Connor, Rubin and Kunzeman, JJ., concur.