VIZCARRONDO v. BOARD OF EDUCATION OF CITY OF NEW YORK (2005)

Order, Supreme Court, Bronx County (Stanley Green, J.), entered February 6, 2004, which, in an action by an infant and her parent against the Board of Education and City of New York for personal injuries sustained in a kindergarten classroom assault by fellow students, denied plaintiffs' motion to resolve against defendants the issue of whether they had notice of the alleged assailants' assaultive propensities, on condition that defendants provide an affidavit by a person with knowledge of the reasons why they are unable to produce the assailants' school records, unanimously affirmed, without costs.

Defendants' failure to comply with prior court orders directing their production of the subject records for in camera inspection was properly excused on condition that they further explain why the assailants' transfer out of their school system has rendered the records unavailable.   Although defendants have been derelict, the drastic sanctions sought against them were properly withheld where they substantially complied with the vast bulk of plaintiffs' discovery demands, and plausibly explained their initial noncompliance as the result of a mistaken belief that they were required to disclose only the assailants' names and last known addresses (see Frye v. City of New York, 228 A.D.2d 182, 643 N.Y.S.2d 90 [1996] ).   We would add that other means of proving defendants' notice of the assailants' assaultive propensities appear to be available to plaintiffs.