Opinion
2001-07054
Submitted March 6, 2002.
March 25, 2002.
In an action to recover damages for personal injuries, etc., the defendant appeals from so much of an order of the Supreme Court, Kings County (Hutcherson, J.), dated June 18, 2001, as granted that branch of the plaintiffs' motion which was pursuant to CPLR 3126 to preclude it from offering any testimony at trial regarding the maintenance, service, or repair of the subject elevator.
Babchik Young, LLP, White Plains, N.Y. (Seth Farber of counsel), for appellant.
Jasper Jasper, New York, N.Y. (Matthew R. Mager of counsel), for respondents.
Before: MYRIAM J. ALTMAN, J.P., NANCY E. SMITH, GABRIEL M. KRAUSMAN, LEO F. McGINITY, and BARRY A. COZIER, JJ.
ORDERED that the order is reversed insofar as appealed from, as a matter of discretion, with costs, and that branch of the plaintiffs' motion which was pursuant to CPLR 3126 to preclude the defendant from offering any testimony at trial regarding the maintenance, service, or repair of the subject elevator is denied.
While the nature and degree of the penalty to be imposed on a motion pursuant to CPLR 3126 is a matter of discretion for the court (see Polanco v. Duran, 278 A.D.2d 397), an order of preclusion should only be imposed where the moving party establishes that the failure to disclose is willful, contumacious, or in bad faith (see Scardino v. Town of Babylon, 248 A.D.2d 371). Here, since the plaintiffs did not show that the defendant's failure to disclose was willful, contumacious, or in bad faith, the Supreme Court improvidently exercised its discretion in precluding the defendant from offering any testimony at trial regarding the maintenance, service, or repair of the subject elevator.
ALTMAN, J.P., SMITH, KRAUSMAN, McGINITY and COZIER, JJ., concur.