The missing videoSeptember 16, 2016

Fox v Grand Slam Banquet Hall, 2016 NY Slip Op 05897 (1st Dept. 2016)

(1) “Under the particular circumstances of this case, the court abused its discretion in [*2]dismissing the complaint due to plaintiff’s belated disclosure of a video. Although CPLR 3101(i) requires disclosure of “any films, photographs, video tapes or audio tapes” of a party upon demand (see Falk v Inzinna , 299 AD2d 120 [2d Dept 2002]), there was insufficient evidence of willful or contumacious conduct on plaintiff’s part, or prejudice to Grand Slam, to warrant the dismissal of her complaint in the midst of the jury trial (see Colome v Grand Concourse 2075 , 302 AD2d 251 [1st Dept 2003]; Ahroni v City of New York , 175 AD2d 789 [2d Dept 1991]), even if the dismissal was without prejudice.”

(2) “There was no court order directing plaintiff to produce the video, and Grand Slam’s discovery demands only requested that she produce photographs. Furthermore, plaintiff, who claimed to have misplaced the video, did not seek to introduce the edited video, which did not show her fall, into evidence at trial, and was willing to consent to its preclusion, the striking of her testimony concerning its existence, and a curative instruction, even though she believed the video to be favorable to her because it showed a cord across the floor and one of Grand Slam’s principals standing in the vicinity.”

This literally was the trial surprise and the court was not going to entertain it.  I can see Judge Gonzalez striking the complaint.  Calmer minds in downtown Manhattan gave the plaintiff a break.  I am unsure I would have been so generous to the plaintiff.