Opinion
June 11, 1990
Appeal from the Supreme Court, Kings County (Hurowitz, J.).
Ordered that the appeal from the order dated October 31, 1988, is dismissed as that order was superseded by the order dated February 9, 1989, made upon reargument; and it is further,
Ordered that the order dated February 9, 1989, is affirmed insofar as reviewed; and it is further,
Ordered that the respondents are awarded one bill of costs.
The court properly exercised its discretion in denying the appellant's motion for a protective order (CPLR 3103). The courts have consistently encouraged liberal pretrial disclosure (e.g., Cynthia B. v. New Rochelle Hosp. Med. Center, 60 N.Y.2d 452, 461). The appellant should, if possible, produce a witness with knowledge as to whether it maintains any records which would be useful in determining whether any of its trucks might have been in the vicinity of the accident at the time in question.
We also see no improvident exercise of discretion with respect to the court's failure to direct the plaintiffs to pay the costs incurred by the appellant in producing a witness. If it is ultimately shown that the plaintiffs' claim is without merit, then the appellant may seek to have the court award appropriate disbursements as part of the final judgment (see, CPLR 8301 [a] [12]; Allied Excavating Corp. v. Graves Equip. Co., 99 A.D.2d 499). Bracken, J.P., Eiber, Sullivan and Rosenblatt, JJ., concur.