Koziarz v New York City Tr. Auth.

Koziarz v New York City Tr. Auth. 2007 NY Slip Op 04235 [40 AD3d 412] May 17, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 11, 2007

Matthew Koziarz, Respondent,
v
New York City Transit Authority et al., Appellants.

—[*1] Steve S. Efron, New York, for appellants.

Shestack & Young, LLP, New York (Rita F. Aronov of counsel), for respondent.

Order, Supreme Court, New York County (Robert D. Lippmann, J.), entered June 19, 2006, which denied defendant's motion to supplement its response to plaintiff's discovery demand by turning over a "trip sheet" containing the names of two witnesses, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the motion granted.

The court exercised its discretion improvidently in denying defendant's motion. There is no evidence that defendant's failure to turn over the trip sheet was willful or in bad faith, or that plaintiff will be prejudiced by the late disclosure, and denying defendant permission to supplement its discovery response by turning over the trip sheet effectively precluded evidence from the only independent eyewitnesses to the accident (see Scherrer v Time Equities, Inc., 27 AD3d 208 [2006]; Schiavone v Brinewood Rod & Gun Club, 283 AD2d 234, 237 [2001]; Anagnostaros v 81st St. Residence Corp., 269 AD2d 150 [2000]). Concur—Marlow, J.P., Nardelli, Gonzalez, Sweeny and Malone, JJ.