McElheron v. Indian Hollow Elementary School

99 A.D.2d 827, 472 N.Y.S.2d 422, 1984 N.Y. App. Div. LEXIS 17234

Opinion

In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from an order of the Supreme Court, Suffolk County (Gowan, J.), dated June 7, 1983, which granted defendant Frederic P. Wiedersum Associates’ motion to preclude plaintiffs from “using any expert as to the condition of * * * or any inspection of the drinking fountain in question, upon the trial of this action”. Order reversed, without costs or disbursements, and defendant Frederic P. Wiedersum Associates’ motion denied on condition that plaintiffs obtain and serve upon the said defendant a copy of an inspection report with respect to the drinking fountain in question and that plaintiffs’ attorney personally pays to said defendant the sum of $750 within 20 days after service upon plaintiffs of a copy of the order to be made hereon, with notice of entry. In the event either condition is not complied with, order affirmed, with costs to defendant Frederic P. Wiedersum Associates. Under the circumstances in this record, we find that while the conduct of plaintiffs and their counsel is not excusable, it does not warrant the penalty of preclusion but rather warrants the sanctions herein imposed (cf. Boes v Harris, 96 AD2d 849; Passarelli v National Bank, 81 AD2d 635). Titone, J. P., Bracken, Brown and Rubin, JJ., concur.