Opinion
April 11, 1989
Appeal from the Supreme Court, New York County (Bruce Wright, J.).
This case grows out of an incident in Macy's Herald Square store in New York County on or about December 30, 1979. Plaintiff's decedent claimed that she was assaulted and unlawfully detained by Macy personnel. Macy denied the charge. After an extended history of nonproduction of witnesses and documents, the defendant was ordered to subpoena for examination before trial nine former employees who might have some knowledge of the incident. The record reveals that some efforts were made. Four former employees were produced and gave evidence.
While the motion court found the efforts inadequate, we deem it the better course to have a trial on the merits and to preclude the defendant from producing at trial anyone not already produced for an examination before trial.
Concur — Kupferman, J.P., Asch, Kassal, Rosenberger and Smith, JJ.