Opinion
687-688
September 5, 2002.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered November 1, 2001, which, upon the grant of the municipal defendant's motion for renewal and reargument, afforded it additional time to provide specified discovery and denied plaintiffs' motion for renewal of their demand for unconditional sanctions, unanimously modified, on the law, the facts and in the exercise of discretion, plaintiffs' motion granted, and otherwise affirmed, without costs, unless defendants-respondents, within 30 days of service of a copy of this order with notice of entry, pay plaintiffs' attorneys the amount of $2500, in which event the order is affirmed, without costs. Appeal from order, same court and Justice, entered October 12, 2000, which, insofar as appealed from, denied plaintiffs' motion for an order striking defendant City's answer or unconditionally precluding defendant City from offering evidence at trial in opposition to plaintiffs' claim that a police vehicle was chasing the stolen vehicle that struck plaintiffs in the subject accident, unanimously dismissed, without costs.
DAVID A. KAPELMAN, for plaintiffs-appellants.
JULIAN L. KALKSTEIN, for defendants-respondents.
Before: Williams, P.J., Buckley, Ellerin, Rubin, JJ.
The motion court properly exercised its discretion in declining to impose the harsh sanctions reserved for spoliation of evidence (see,Smith v. New York City Health Hosps. Corp., 284 A.D.2d 121, lv denied 97 N.Y.2d 607), since the required element of an unfairly gained advantage (see, Tawedros v. St. Vincent's Hosp., 281 A.D.2d 184) was not sufficiently demonstrated. While the discovery noncompliance by defendant City cannot be found to have been of such nature that the City's answer should be stricken or that a comparably harsh sanction pursuant to CPLR 3126 should be imposed at this time (see, Catarine v. Beth Israel Med. Ctr., 290 A.D.2d 213), we nevertheless find that the imposition of a $2500 penalty is warranted in view of the lengthy and continuing untenable delay. Further delay, other than a brief, reasonable period after service of a copy of this order with notice of entry upon defendant City, in producing either any remaining items and witnesses directed by the court in the October 12, 2000 and the November 1, 2001 orders, or in providing a cogent sworn affidavit explanation for a failure to produce, would result in a compelling argument for plaintiffs obtaining enforcement of the motion court's conditional order of preclusion.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.