Citation Numbers: 1 A.D.2d 410, 766 N.Y.S.2d 689
Filed Date: 11/10/2003
Status: Precedential
Modified Date: 10/19/2024
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Glover, J.), dated October 2, 2002, which granted the defendant’s motion to preclude her from offering certain evidence at trial and to dismiss the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff allegedly was injured when the top of a glass jar of salsa broke off as she attempted to replace the lid on the jar. Shortly thereafter, she retained an expert to inspect the jar. The
When the plaintiff again failed to supply the information, the defendant moved to preclude her from offering evidence regarding the jar and to dismiss the complaint. In opposition to the motion, the plaintiff indicated that the jar was not in her possession, but did not explain what happened to it.
The Supreme Court providently exercised its discretion in precluding the plaintiff from offering evidence regarding the jar, a key piece of evidence crucial to the defense of this action (see Yi Min Ren v Professional Steam-Cleaning, 271 AD2d 602 [2000] ; see also Horace Mann Ins. Co. v E.T. Appliances, 290 AD2d 418 [2002]; Behrbom v Healthco Intl., 285 AD2d 573, 574 [2001] ). Contrary to the plaintiffs contention, a deposition of her expert would not be an adequate substitute for production of the requested discovery (see Thornhill v A.B. Volvo, 304 AD2d 651, 652 [2003]; Behrbom v Healthco Intl., supra). Since the plaintiff cannot establish a prima facie case without the precluded evidence, the Supreme Court properly dismissed the complaint. Altman, J.P., Smith, Friedmann and Crane, JJ., concur.