Hirschmann v. Kaggen , 530 N.Y.S.2d 989 ( 1988 )

— In an action to recover damages for conscious pain and suffering and wrongful death of the plaintiff’s decedent, the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Shaw, J.), dated May 19, 1988, as, in effect, granted that branch of the defendant’s motion which was to preclude the testimony of Frank Grillo, a nonparty witness, at the trial unless the defendant was given the opportunity and the witness made himself available to be questioned concerning the circumstances of this accident at least two weeks prior to the selection of a jury in this case.

Ordered that the order is affirmed insofar as appealed from, with costs.

Under the circumstances, we find that the Supreme Court did not improvidently exercise its discretion by precluding the trial testimony of Frank Grillo, a nonparty witness, unless the defendant was given the opportunity to examine the witness at least two weeks prior to jury selection (see, Rozakis v Tilo Co., 32 AD2d 930). Brown, J. P., Lawrence, Weinstein and Balletta, JJ., concur.