Scardino v. Town of Babylon

• Decision Date: 02 March 1998
• Citation: Scardino v. Town of Babylon, 669 N.Y.S.2d 655, 248 A.D.2d 371 (N.Y. App. Div. 1998)
• Parties: , 1998 N.Y. Slip Op. 1878 Joseph SCARDINO, Individually and as Executor of Mary Scardino, Deceased, Respondent, v. TOWN OF BABYLON, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 655

669 N.Y.S.2d 655

248 A.D.2d 371, 1998 N.Y. Slip Op. 1878

Joseph SCARDINO, Individually and as Executor of Mary Scardino, Deceased, Respondent, v. TOWN OF BABYLON, Appellant.

Supreme Court, Appellate Division Second Department.

March 2, 1998.

Martin, Fallon & Mulle, Huntington (Larry M. Shaw, of counsel), for appellant.

John Cucci, Jr., Deer Park, for respondent.

Before BRACKEN, J.P., and COPERTINO, SANTUCCI, FLORIO and McGINITY, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries and wrongful death, the defendant appeals from (1) an order of the Supreme Court, Suffolk County (Gowan, J.), dated May 1, 1997, which granted the plaintiff's motion to preclude the defendant from offering any evidence at trial in support of its defense, and (2) an order of the same court dated August 8, 1997, which, inter alia, granted the plaintiff's motion for summary judgment in its favor on the issue of liability.

ORDERED that the order dated May 1, 1997, is reversed, and the plaintiff's motion to preclude the defendant from offering any evidence at trial in support of its defense is denied; and it is further,

ORDERED that the order dated August 8, 1997, is reversed, on the law, and the plaintiff's motion for summary judgment is denied; and it is further,

ORDERED that the defendant is awarded one bill of costs.

We agree with the contention of the defendant, Town of Babylon, that the court improvidently exercised its discretion in precluding it from offering any evidence in its defense. The order of preclusion was based on the Town's failure to timely comply with an oral order of the court issued on February 5, 1997, directing it to submit an affidavit attesting to the fact that Joseph Costanza, who observed the decedent shortly after the accident, was no longer employed by the Town. It is well settled that an order of preclusion should only be imposed where the...