Scott v King

Scott v King 2011 NY Slip Op 02955 Decided on April 14, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 14, 2011
Mazzarelli, J.P., Friedman, Acosta, DeGrasse, Román, JJ.
4792N 310702/08

[*1]Nakia Scott, Plaintiff-Respondent,

v

Shelly King, Defendant, Geeba Fofana, et al., Defendants-Appellants.



 
Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Stacy R. Seldin of counsel), for appellants.
Law Office of Alexander Bespechny, Bronx (Alexander
Bespechny of counsel), for respondent.

Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered September 7, 2010, which, insofar as appealed from as limited by the briefs, denied the motion by defendants Geeba Fofana and Sunrise Limo Enterprise to preclude plaintiff from offering or relying on at trial X rays or MRIs of her cervical or lumbar spine, unanimously affirmed, without costs.

In their moving papers, defendants asserted that, following plaintiff's response to their demand, they made "diligent" efforts to ascertain the location of the subject diagnostic films. However, they provided no details as to their "good faith" efforts to resolve this matter without the assistance of the court (see 22 NYCRR 202.7(c)); Reyes v Riverside Park Community [Stage I], Inc., 47 AD3d 599, 600 [2008]).

Moreover, plaintiff asserts that he does not possess copies of the diagnostic films at issue (see Argo v Queens Surface Corp., 58 AD3d 656, 657 [2009]; Sagiv v Gamache, 26 AD3d 368, 369 [2006]), and it is undisputed that he produced authorizations for the last known identity and address of the healthcare providers that appear to have generated the films at issue. We agree with the motion court's implicit conclusion that plaintiff has not engaged in a willful failure to comply with his discovery obligations, warranting sanctions (see Cespedes v Mike & Jac Trucking Corp., 305 AD2d 222 [2003]). In addition, Supreme Court's resolution of the motion does not preclude reconsideration of appropriate limitations on the proof plaintiff may present at trial.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 14, 2011 [*2]

CLERK