Opinion
May 8, 1990
Appeal from the Supreme Court, New York County (Myriam Altman, J., Leo Hayes, J.).
The original jury award does not shock the conscience of the court (CPLR 5501; Felice v. Delporte, 136 A.D.2d 913, 914). Defendant does not dispute the jury verdict on liability, and plaintiff's evidence of damages showed that she suffered from a broken wrist and a broken ankle that has caused permanent conditions of pain and impairment of activities that plaintiff enjoyed well into her 80's.
The first trial ended in a mistrial when it became clear that plaintiff had failed to comply with defendant's discovery demand for all witnesses' statements. In choosing to grant a mistrial and order an immediate deposition of the witness in question (which defendant declined to take), in preference to granting defendant's motion for a preclusion order, the Justice presiding at the first trial took into account the drastic nature of the sanction of preclusion (see, e.g., Matter of Cullen, 143 A.D.2d 746, 747) and exercised her discretion appropriately (Lowitt v Burton I. Korelitz, M.D., P.C., 152 A.D.2d 506, 507).
At the second trial, the Justice presiding did not grant defendant's motion for a missing witness charge when plaintiff did not produce testimony of her treating physician (Moore v Johnson, 147 A.D.2d 621, 622-623). However, we find the error harmless in the absence of any indication that the testimony given by the missing witness would have been "of vital importance" and would have covered material not already covered in testimony and voluminous documentary evidence by way of hospital reports that were produced (cf., Wilson v. Bodian, 130 A.D.2d 221, 234).
We have considered defendant's other arguments and find them to be without merit.
Concur — Kupferman, J.P., Ross, Kassal, Ellerin and Wallach, JJ.