Opinion
February 16, 1988
Appeal from the Supreme Court, Suffolk County (Gerard, J.).
Ordered that the judgment is affirmed, with costs.
The defendant claims error, inter alia, in the trial court having allowed two of the plaintiffs' witnesses to testify despite the fact that these witnesses had not been listed by the plaintiffs in response to the defendant's demand for discovery of names and addresses of eyewitnesses. The defendant did, however, have actual notice of the identity of these two individuals. One was a police officer who did not witness the accident and merely responded to the accident scene, and the other had been driving behind the plaintiff and was an actual eyewitness. This individual's name was listed on the police report.
In Bermudez v Laminates Unlimited ( 134 A.D.2d 314), this court found that absent a finding that the failure of the plaintiffs' attorney to provide the names and addresses of eyewitnesses was willful or contumacious, the imposition of the harsh sanction of dismissal is unwarranted. Since the record in the instant case lacks evidence of the attorney's willfulness we cannot find error in the court allowing these witnesses to testify. We emphasize that it is clear that the identity of the witnesses was known to the defendant.
We have examined the defendant's other claims of error, including his claim that the jury's verdict was excessive, and find them to be without merit. Thompson, J.P., Brown, Eiber and Sullivan, JJ., concur.