Lehman v. City of New York , 809 N.Y.S.2d 451 ( 2006 )

Order, Supreme Court, New York County (Faviola A. Soto, J.), entered December 23, 2004, which precluded defendant City of New York from asserting a defense of lack of notice of defect or prior complaint, or from otherwise relying on discovery documents it produced (or might produce in response to further discovery resulting from the December 22, 2004 scheduled compliance conference), and imposed costs of $3,000 and $1,500 in favor of plaintiff and defendant Felix Industries, respectively, payable by the City, unanimously modified, on the law, the facts and in the exercise of discretion, to the extent of vacating that portion of the order precluding the City from asserting a defense of lack of notice of defect or prior complaint, or from otherwise relying on discovery documents it produced (or might produce as a result of the noted compliance conference), and to the further extent of vacating the award of $1,500 costs in favor of defendant Felix Industries, and otherwise affirmed, without costs.

Under the particular circumstances of this case, preclusion of the City’s defenses was not warranted (see e.g. Cianciolo v Trism Specialized Carriers, 274 AD2d 369 [2000]; cf. Jackson v City of New York, 185 AD2d 768 [1992]; see also Ahroni v City of New York, 175 AD2d 789 [1991]).

We have considered the City’s other arguments and find them unavailing, except insofar as we vacate the award of costs in favor of defendant Felix Industries. Concur—Andrias, J.P., Saxe, Friedman, Gonzalez and Catterson, JJ.