Opinion
January 23, 1989
Appeal from the Supreme Court, Suffolk County (McCarthy, J.).
Ordered that the order is affirmed, without costs or disbursements; the defendant's time to produce Keith Sakowsky for deposition by the plaintiffs is extended; the deposition shall be held at a time and place to be specified in a notice of not less than five days to be served upon the defendant by the plaintiffs together by a copy of this decision and order with notice of entry.
We agree with the Supreme Court that there exist triable issues of fact regarding constructive notice, or the lack thereof, with regard to the allegation of the existence of a puddle of water on the cafeteria floor where the plaintiff fell. The lack of proof is, at least in part, attributable to the plaintiffs' inability to examine the defendant's former employee, which inability apparently resulted from the defendant's dilatory tactics (see, Payne v Big V Supermarkets, 140 A.D.2d 422). Accordingly, the court properly denied the defendant's motion for summary judgment (Rotuba Extruders v Ceppos, 46 N.Y.2d 223, 231). We also agree that because there is uncertainty as to when the witness, Keith Sakowsky, ceased to be employed by and under the control of the defendant, it is not clear that the defendant has acted in a willful or contumacious manner to frustrate disclosure so as to warrant the imposition of such harsh sanctions as striking its answer or, upon trial, giving a missing witness instruction pursuant to CPLR 3126 (cf., Kramme v Town of Hempstead, 100 A.D.2d 447, 451). However, under the circumstances of this case, the sanction imposed in barring the defendant from calling Keith Sakowsky as a witness, unless produced for deposition within 10 days after service of the order appealed from, was warranted (see, Williams v Coren, 112 A.D.2d 419). Mangano, J.P., Brown, Kunzeman and Kooper, JJ., concur.