| Mangual v New York City Tr. Auth. |
| 2008 NY Slip Op 00994 [48 AD3d 212] |
| February 5, 2008 |
| Appellate Division, First Department |
| Olga Mangual, Appellant, v New York City TransitAuthority, Respondent. |
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Order, Supreme Court, New York County (Robert D. Lippmann, J.), entered August 28,2006, which, in an action for personal injuries, denied plaintiff's motion to strike defendant'sanswer or to strike the answer unless defendant produced a design engineer for deposition, andsua sponte precluded both parties from using a design engineer at trial and directed defendant toproduce a cleaner who has knowledge of the staircase where the accident occurred for deposition,unanimously modified, on the law and the facts, to vacate the preclusion order, and otherwiseaffirmed, without costs.
The court properly denied plaintiff's motion to strike defendant's answer since there was noshowing that defendant's conduct during discovery was willful, contumacious or in bad faith(CPLR 3126; see Guzetti v City of NewYork, 32 AD3d 234 [2006]). Defendant was not obligated in the first instance toproduce a witness of plaintiff's choosing for deposition (see Faber v New York City Tr.Auth., 177 AD2d 321 [1991]), and its offer to produce a cleaner at the subway station whereplaintiff fell was reasonable under the circumstances. While there were no specific allegations inthe complaint or bill of particulars that plaintiff's fall was due to negligent design of the staircase,there was no justification for the court's sua sponte preclusion order.
We have considered plaintiff's remaining contentions and find them unavailing.Concur—Lippman, P.J., Mazzarelli, Friedman, Sweeny and Moskowitz, JJ.