Opinion
1199N
May 28, 2002.
Order, Supreme Court, New York County (Jose Padilla, J.), entered on or about October 4, 2001, which denied plaintiff's motion to strike defendant's answer and, in response to that branch of plaintiff's motion seeking an alternative sanction, declared a mistrial and imposed a $2000 sanction upon defendant, unanimously modified, on the law, the facts and in the exercise of discretion, to resolve the issue of notice in plaintiff's favor, and to vacate the $2000 sanction and in lieu thereof award plaintiff an amount equal to her actual out-of-pocket expenses incurred in preparation for the first trial, and the matter remanded for a hearing as to those expenses, and otherwise affirmed, without costs.
KENNETH J. HALPERIN, for plaintiff-appellant.
LAWRENCE A. SILVER, for defendant-respondent.
Before: Williams, P.J., Nardelli, Rosenberger, Marlow, Gonzalez, JJ.
While the court properly declined to take the drastic measure of striking defendant's answer, the penalty imposed was far too lenient in light of the egregiously cavalier attitude of defendant toward its discovery obligations. In view of defendant's inexcusable failure to produce the documents sought by plaintiff during discovery until mid-trial, the issue of whether defendant had notice, actual or constructive, of the alleged defective condition upon its premises should be resolved in plaintiff's favor (see, Virola v. New York City Hous. Auth., 185 A.D.2d 122). In addition, inasmuch as plaintiff claims that her actual out-of-pocket expenses in preparing for the first trial substantially exceeded the $2000 award made to her by the court, she should be afforded a hearing to establish the amounts actually expended.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.