| Sosa v Kasim |
| 2008 NY Slip Op 01599 [48 AD3d 320] |
| February 21, 2008 |
| Appellate Division, First Department |
| Juan Sosa, Respondent, v Mohamed N. Kasim, Defendant,and Mazda American Credit Corporation, Appellant. |
—[*1] Trolman, Glaser & Lichtman, P.C., New York City (Michael T. Altman of counsel), forrespondent.
Order, Supreme Court, Bronx County (Alison Y. Tuitt, J.), entered August 28, 2006, which,to the extent appealed from, granted plaintiff's motion to strike defendant Mazda's answer withrespect to any issue of defendant Kasim's medical condition, unanimously reversed, on the law,without costs, and the motion denied. Appeal from order, same court and Justice, enteredFebruary 2, 2007, which, to the extent appealable, denied Mazda's motion to renew, unanimouslydismissed as academic, without costs.
Kasim, the operator of the vehicle leased from Mazda, testified at his deposition that he wastold he had suffered a stroke just prior to striking plaintiff pedestrian, which would constitute anunforeseen medical emergency. This testimonial evidence sufficiently supported Mazda'saffirmative defense (see Brewster vFTM Servo, Corp., 44 AD3d 351 [2007]), and it was an improvident exercise ofdiscretion for the trial court to preclude Mazda from presenting any such evidence at trial.Preclusion was an inappropriately severe sanction where there was neither willful behavior onMazda's part nor prejudice to its adversary (see Gallo v Linkow, 255 AD2d 113, 117[1998]). Concur—Lippman, P.J., Andrias, Nardelli, Buckley and Acosta, JJ.