Martinez v. New York City Transit Authority

218 A.D.2d 643, 630 N.Y.S.2d 345, 1995 N.Y. App. Div. LEXIS 8305

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: August 7, 1995
• Status: Published

Opinion

—In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (I. Aronin, J.), dated August 26, 1993, which directed it to pay the sum of $10,000 to the plaintiff as a sanction.

Ordered that the order is modified, on the law, by deleting the provision thereof directing the payment of $10,000 to the plaintiff and substituting therefor a provision directing that the $10,000 be deposited with the Clerk of the Supreme Court, Kings County, for transmittal to the State Commissioner of Taxation and Finance; as so modified, the order is affirmed, without costs or disbursements.

The record amply supports the Supreme Court’s finding that the defendant’s conduct was frivolous. For the first time, in the middle of trial, the defendant produced a critical witness, the allegedly negligent party, although this witness, who was its own employee, had been readily identifiable and available for more than two years. Under the circumstances, the court did not improvidently exercise its discretion in precluding the witness’s testimony unless payment of the maximum monetary sanction was made.

However, the court erred in directing that payment be made directly to the plaintiff. Sanctions imposed against a party must be deposited with the Clerk of the Court for transmittal to the State Commissioner of Taxation and Finance (see, 22 NYCRR 130-1.3; Nowak v Walden, 187 AD2d 418).

The defendant’s remaining contentions are without merit. Rosenblatt, J. P., Altman, Hart and Friedmann, JJ., concur.