Sosa v. Kasim

48 A.D.3d 320, 851 N.Y.S.2d 517

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 21, 2008
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered August 28, 2006, which, to the extent appealed from, granted plaintiffs motion to strike defendant Mazda’s answer with respect to any issue of defendant Kasim’s medical condition, unanimously reversed, on the law, without costs, and the motion denied. Appeal from order, same court and Justice, entered February 2, 2007, which, to the extent appealable, denied Mazda’s motion to renew, unanimously dismissed as academic, without costs.

Kasim, the operator of the vehicle leased from Mazda, testified at his deposition that he was told he had suffered a stroke just prior to striking plaintiff pedestrian, which would constitute an unforeseen medical emergency. This testimonial evidence sufficiently supported Mazda’s affirmative defense (see Brewster v FTM Servo, Corp., 44 AD3d 351 [2007]), and it was an improvident exercise of discretion for the trial court to preclude Mazda from presenting any such evidence at trial. Ereclusion was an inappropriately severe sanction where there was neither willful behavior on Mazda’s part nor prejudice to its adversary (see Gallo v Linkow, 255 AD2d 113, 117 [1998]). Concur—Lippman, P.J., Andrias, Nardelli, Buckley and Acosta, JJ.