Opinion
3123.
Decided June 8, 2004.
Order, Supreme Court, Bronx County (Troy K. Webber, J.), entered September 16, 2003, which granted plaintiff's motion to reargue the denial of her motion for partial summary judgment on the issue of liability, and, upon reargument, granted plaintiff's motion on the ground that defendants were precluded from offering testimony at trial, unanimously reversed, on the law, without costs, plaintiff's motion for reargument and for summary judgment denied and the matter remanded for further proceedings.
Fiedelman McGaw, Jericho (Ross P. Masler of counsel), for appellants.
The Pagan Law Firm, P.C., New York (Tania M. Pagan of counsel), for respondent.
Before: Andrias, J.P., Williams, Lerner, Friedman, Marlow, JJ.
Although defendants were precluded by a prior order (Sallie Manzanet, J.) from offering evidence on the issue of liability as a result of their failure to produce a witness for examination before trial, their answer was not stricken and they were not precluded from establishing the affirmative defense of comparative negligence asserted therein. Thus, since the purpose of the preclusion order was to make the demanding party whole ( see Northway Eng'g v. Felix Indus., 77 N.Y.2d 332, 337), by granting plaintiff partial summary judgment on the issue of liability despite alleged factual disputes regarding plaintiff's comparative negligence, which might possibly be established through cross-examination of plaintiff's witnesses, plaintiff was granted more relief than was warranted by defendants' failure to produce a witness for pretrial examination ( id.).
Accordingly, plaintiff's motion should have been denied in all respects.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.