Opinion
March 7, 1988
Appeal from the Supreme Court, Westchester County (Ferraro, J.).
Ordered that the judgment is modified, by deleting therefrom the award of damages to the plaintiff; as so modified, the judgment is affirmed, and the matter is remitted to the Supreme Court, Westchester County, for a jury trial on the issue of damages, with costs to the plaintiff to abide the event.
The instant action was commenced for payment for materials and labor for a custom made bronze and glass interior railing and an anodized aluminum exterior railing in the defendant's home. The defendant counterclaimed for breach of contract and negligence.
At trial, the plaintiff produced evidence that the work was satisfactory and conformed to industry standards. The defendant's testimony, however, indicated that the railings were beyond repair and had to be replaced. After both sides rested, the trial court ordered a jury viewing of the railings. The defendant refused, offering three separate excuses, all of which were rejected by the court. The trial court dismissed the defendant's pleadings and granted judgment to the plaintiff in the principal amount of $30,106.
The defendant contends that the trial court erred in ordering a jury viewing of the premises. We disagree. A decision to order a viewing is within the discretion of the trial court (see, CPLR 4110-c; Cole v. Lawas, 97 A.D.2d 912; Manuta v. Lazarus, 104 Misc. 134). In light of the conflicting testimony regarding the condition of the railings, the trial court's order was an appropriate exercise of discretion under CPLR 4110-c.
In addition, we find that the trial court did not abuse its discretion in striking the defendant's pleadings. While the defendant argues that his refusal to comply with the court order was not willful, he does not offer, nor has he ever offered, to comply with a viewing. Under the circumstances, his refusal to comply with the court order must be construed as willful. Thus, dismissal of the defendant's pleadings was an appropriate sanction (see, Zletz v. Wetanson, 67 N.Y.2d 711, 713; Sawh v Bridges, 120 A.D.2d 74, appeal dismissed 69 N.Y.2d 852; Jet Asphalt Corp. v. Consolidated Edison Co., 114 A.D.2d 489).
The trial court erred, however, in not permitting the jury to assess the damages. Liability and damages are distinct and severable issues, which may be tried and determined separately (see, Mercado v. City of New York, 25 A.D.2d 75). Pursuant to CPLR 603, this court may order a trial of "any separate issue" (see, Harari-Raful v. Trans World Airlines, 41 A.D.2d 753, 754). Accordingly, the matter is remitted to the Supreme Court, Westchester County, for a jury trial solely on the issue of damages (see, Reynolds Sec. v. Underwriters Bank Trust Co., 44 N.Y.2d 568). Mollen, P.J., Thompson, Rubin and Spatt, JJ., concur.