Summary
In Bermudez v Laminates Unlimited (134 AD2d 314), this Court held that, absent a finding that the failure of the plainitiff's attorney to disclose the names and addresses of eyewitnesses was willful or contumacious, the imposition of the harsh sanction of preclusion or dismissal is unwarranted.
Summary of this case from Malcolm v. DarlingOpinion
November 9, 1987
Appeal from the Supreme Court, Kings County (Vaccaro, J.).
Ordered that the judgment is reversed, without costs or disbursements, the order dated April 21, 1986 is vacated, and the plaintiff's complaint is reinstated on condition that the plaintiff's attorneys personally pay the sum of $2,500 to the defendant Laminates Unlimited Inc., within 20 days after service upon the plaintiff's attorneys of a copy of this decision and order, with notice of entry; in the event that condition is not complied with the judgment is affirmed, with costs.
By letter dated April 14, 1986, four days prior to commencement of trial, the plaintiff's attorneys disclosed the names of five witnesses that they intended to call to testify at trial.
The Supreme Court, Kings County, precluded the plaintiff from calling those witnesses at trial on the ground that the plaintiff had failed to timely comply with a so-called "8-A" preliminary conference order dated March 21, 1984. That order required the parties, inter alia, to "[e]xchange names and addresses of eyewitness" within 45 days.
There is no question that the letter of the plaintiff's attorneys dated April 14, 1986, was a very tardy response to, and serious disregard of the preliminary conference order. Indeed, the plaintiff's attorneys filed a note of issue and statement of readiness as early as April 1985 thereby indicating that all discovery had been completed. Nevertheless, the Supreme Court never specifically found that the conduct of the plaintiff's attorneys was willful or contumacious, and absent such a finding the harsh sanction of preclusion or dismissal of the complaint is generally not warranted (Sawh v. Bridges, 120 A.D.2d 74, 79, appeal dismissed 69 N.Y.2d 852). In addition, the record indicates that the identity of 3 of the 5 witnesses listed in the letter of plaintiff's attorneys dated April 14, 1986, including that of the key eyewitness, was known by the defendants for some time prior thereto. Under these circumstances, we are of the view that reinstatement of the complaint conditioned upon the payment of a penalty would be more appropriate than the outright denial of the elderly plaintiff's right to a day in court (see, Moran v Rynar, 39 A.D.2d 718). Upon timely payment by the plaintiff's attorneys of the penalty imposed herein the matter should be removed from the Trial Calendar in order to afford the defendants a reasonable opportunity to conduct any appropriate discovery with respect to the plaintiff's witnesses listed in the letter of the plaintiff's attorneys dated April 14, 1986. Thompson, J.P., Brown, Lawrence and Spatt, JJ., concur.