Opinion
February 24, 1986
Appeal from the Supreme Court, Nassau County (Kelly, J.).
Order reversed, insofar as appealed from, with costs, and defendants' motion denied.
The evidence before Special Term was insufficient for it to conclude reasonably that the plaintiffs had willfully and contumaciously failed to comply with its prior discovery order. It was therefore an abuse of discretion for Special Term to impose the sanction of preclusion for nondisclosure (see, Donner v. 50 Tom Corp., 99 A.D.2d 504). Plaintiffs' attorneys claimed that the missing X ray was never in their possession. Lazer, J.P., Mangano, Bracken and Niehoff, JJ., concur.