VIGIO v. NEW YORK HOSPITAL (1999)

Supreme Court, Appellate Division, First Department, New York.

Ramon VIGIO, etc., et al., Plaintiffs-Appellants, v. The NEW YORK HOSPITAL, et al., Defendants-Respondents,
Carlos Mendez, Defendant. Action No. 1 Ramon Vigio, etc., et al., Plaintiffs-Appellants, v. The Mount Sinai Hospital, Defendant-Respondent. Action No. 2

Decided: September 28, 1999

ROSENBERGER, J.P., WILLIAMS, RUBIN, SAXE and BUCKLEY, JJ.

Fred Yalkowsky, for Plaintiffs-Appellants. Patricia D'Alvia, Beth L. Kaufman, James P. Tenney, Robert W. Finke, for New York Hospital, et al. Michael N. Stevens, for Mount Sinai Hospital.

Order, Supreme Court, New York County (Stanley Sklar, J.), entered on or about September 29, 1997, which granted defendants' motions for a disclosure sanction precluding plaintiffs from using at trial a videotape depicting a day in the life of their decedent, unanimously affirmed, without costs.

Preclusion of the video was properly granted in view of the preliminary conference order directing the parties to exchange any photographs, “including motion pictures”; plaintiffs' false certification in their note of issue that disclosure was complete when, in fact, the video in question had already been made but not disclosed; and the undue prejudice caused defendants by plaintiffs' unnecessarily belated disclosure of the video shortly before the trial was scheduled to begin (see, Red Apple Supermarkets v. Malone & Hyde, 251 A.D.2d 78, 673 N.Y.S.2d 672). As the IAS court emphasized, the death of plaintiffs' decedent after the video was made and the death of defendants' examining physician before the video was disclosed, significantly compromise defendants' ability to refute the decedent's condition as depicted in the video.

MEMORANDUM DECISION.

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