| Scott v King |
| 2011 NY Slip Op 02955 [83 AD3d 510] |
| April 14, 2011 |
| Appellate Division, First Department |
| Nakia Scott, Respondent, v Shelly King, Defendant, andGeeba Fofana et al., Appellants. |
—[*1] Law Office of Alexander Bespechny, Bronx (Alexander Bespechny of counsel), forrespondent.
Order, Supreme Court, Bronx County (Laura G. Douglas, J.), entered September 7, 2010,which, insofar as appealed from as limited by the briefs, denied the motion by defendants GeebaFofana and Sunrise Limo Enterprise to preclude plaintiff from offering or relying on at trial Xrays or MRIs of her cervical or lumbar spine, unanimously affirmed, without costs.
In their moving papers, defendants asserted that, following plaintiff's response to theirdemand, they made "diligent" efforts to ascertain the location of the subject diagnostic films.However, they provided no details as to their "good faith" efforts to resolve this matter withoutthe assistance of the court (see 22 NYCRR 202.7 [c]; Reyes v Riverside Park Community [Stage I], Inc., 47 AD3d 599,600 [2008]).
Moreover, plaintiff asserts that she does not possess copies of the diagnostic films at issue(see Argo v Queens Surface Corp.,58 AD3d 656, 657 [2009]; Sagiv vGamache, 26 AD3d 368, 369 [2006]), and it is undisputed that she producedauthorizations for the last known identity and address of the health care providers that appear tohave generated the films at issue. We agree with the motion court's implicit conclusion thatplaintiff has not engaged in a willful failure to comply with her discovery obligations, warrantingsanctions (see Cespedes v Mike & Jac Trucking Corp., 305 AD2d 222 [2003]). Inaddition, Supreme Court's resolution of the motion does not preclude reconsideration ofappropriate limitations on the proof plaintiff may present at trial. Concur—Mazzarelli,J.P., Friedman, Acosta, DeGrasse and RomÁn, JJ.