Guzman v Spring Cr. Towers, Inc., 2009 NY Slip Op 05508 (App. Div., 1st, 2009)
Contrary to the plaintiff's contention, the Supreme Court properly admitted into evidence photographs of a barrier similar to the barrier used at the construction site near the location of the plaintiff's accident, since there was testimony that the photograph fairly and accurately represented the barrier used at the time of the accident (see Shalot v Schneider Natl. Carriers, Inc., 57 AD3d 885, 886; Cubeta v York Intl. Corp., 30 AD3d 557, 561; Kartychak v Consolidated Edison of N.Y., 304 AD2d 487).
Additionally, the trial court did not improvidently exercise its discretion in allowing two emergency medical technicians to testify, despite the defendants' failure to include their names on a witness list. There was no evidence that this omission was willful, and any prejudice to the plaintiff was minimal since the plaintiff had access to the ambulance report and the technicians (see Castracane v Campbell, 300 AD2d 704, 706; Alber v State of New York, 252 AD2d 856, 857).
Islar v New York City Bd. of Educ., 2009 NY Slip Op 05609 (App. Div., 1st, 2009)
The court exercised its discretion in a provident manner in imposing a lesser sanction than that requested (see Kugel v City of New York, 60 AD3d 403 [2009]). The record indicates that the missing witness statements from defendants' internal investigation of the alleged sexual assault of infant plaintiff were not crucial to the prosecution of plaintiffs' claims, inasmuch as each of the witnesses was available for deposition, and other investigative proof, including police records, suggested that the witness' statements were not supportive of plaintiffs' claims (see Jordan v Doyle, 24 AD3d 107 [2005], lv denied 7 NY3d 705 [2006]). Although constituting hearsay, the court properly relied, in part, on police investigative records in deciding the motion.
Furthermore, defendants' conduct in not providing a definitive answer as to the availability of the witness statements during an 18-month period, albeit during which 8 discovery orders were issued, did not amount to willful and contumacious conduct on defendants' part, since defendants could not locate the statements despite a thorough search for them. Even assuming that plaintiffs met their initial burden of showing that defendants' conduct was willful and contumacious, defendants offered a reasonable excuse for their failure to comply with discovery orders, namely that the statements could not be located (see Palmenta v Columbia Univ., 266 AD2d 90 [1999]).
The bold is mine.
