Frazier v. City of New York , 533 N.Y.S.2d 680 ( 1988 )

OPINION OF THE COURT

David B. Saxe, J.

This motion raises the question of whether a plaintiff may be precluded from giving evidence at trial as against all parties where he has properly responded to all discovery demands except the interrogatories of a third-party defendant.

This action arises out of a collision between the plaintiff’s vehicle and a crane which was in the street abutting a construction site, without proper lights, warnings or signals. The primary defendant then impleaded the manufacturer of the plaintiffs vehicle, alleging defective design of the vehicle’s seat belt as a contributing factor to the plaintiffs injuries. Standard pretrial disclosure took place between the parties to the main action; when impleaded, the third-party defendant served written interrogatories on the plaintiff, as was its right. The plaintiff has failed to respond to these interrogatories, and third-party defendant now seeks to preclude the plaintiff from offering evidence at trial relating to those interrogatories.

Although the relief sought has been granted in equivalent circumstances (see, Schlitter v City of New York, 89 AD2d 979), at first glance preclusion seemed to me overly stringent, in light of the plaintiffs full cooperation with the disclosure process in the main action. However, upon consideration I conclude that the relief of preclusion is appropriate. The defense of an action falls as much in the lap of a third-party defendant as it does to a primary defendant; indeed, depending upon the skills of counsel, the third-party defendant may bear the brunt of a successful defense. A failure to disclose may therefore severely hamper the defense to the entire action.

In the absence of opposing papers by the plaintiff, the court is unaware of any valid reason for plaintiffs failure to respond to the interrogatories. The motion is therefore granted to the extent the plainitff will be precluded from giving evidence at trial relating to the interrogatories, unless the plaintiff responds to them within 20 days of service of this order with notice of entry thereon.