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Sosa v. Kasim

Appellate Division of the Supreme Court of New York, First Department
Feb 21, 2008
48 A.D.3d 320 (N.Y. App. Div. 2008)

Opinion

February 21, 2008.

Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered August 28, 2006, which, to the extent appealed from, granted Plaintiffs motion to strike defendant Mazda's answer with respect to any issue of defendant Kasim's medical condition, unanimously reversed, on the law, without costs, and the motion denied. Appeal from order, same court and Justice, entered February 2, 2007, which, to the extent appealable, denied Mazda's motion to renew, unanimously dismissed as academic, without costs.

Before: Lippman, P.J., Andrias, Nardelli, Buckley and Acosta, JJ.


Kasim, the operator of the vehicle leased from Mazda, testified at his deposition that he was told he had suffered a stroke just prior to striking plaintiff pedestrian, which would constitute an unforeseen medical emergency. This testimonial evidence sufficiently supported Mazda's affirmative defense ( see Brewster v FTM Servo, Corp., 44 AD3d 351), and it was an improvident exercise of discretion for the trial court to preclude Mazda from presenting any such evidence at trial. Preclusion was an inappropriately severe sanction where there was neither willful behavior on Mazda's part nor prejudice to its adversary ( see Gallo v Linkow, 255 AD2d 113, 117 [1998]).


Summaries of

Sosa v. Kasim

Appellate Division of the Supreme Court of New York, First Department
Feb 21, 2008
48 A.D.3d 320 (N.Y. App. Div. 2008)
Case details for

Sosa v. Kasim

Case Details

Full title:JUAN SOSA, Respondent, v. MOHAMED N. KASIM, Defendant, and MAZDA AMERICAN…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Feb 21, 2008

Citations

48 A.D.3d 320 (N.Y. App. Div. 2008)
851 N.Y.S.2d 517

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