ANAGNOSTAROS v. Associated Supermarkets, Inc., Defendant-Respondent. (2000)

Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered April 2, 1999, which granted defendant Associated Supermarkets, Inc.'s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, the facts, and in the exercise of discretion, without costs, the motion denied and the complaint reinstated, without prejudice to renewal after defendant has an opportunity to depose plaintiff's witness.

While we are aware that the imposition of sanctions for discovery misfeasance is a matter best left to the trial court's discretion (CPLR 3126;  Gomez v. New York City Hous. Auth., 217 A.D.2d 110, 114, 636 N.Y.S.2d 271;  Tavarez v. DeLange, 190 A.D.2d 568, 593 N.Y.S.2d 230), we find that the IAS court improvidently exercised its discretion in failing to consider the affidavit of plaintiff's witness.   We are not convinced that plaintiff's failure to produce the witness, of whom she was allegedly unaware, at an earlier stage of the proceedings was willful or contumacious and warranted the penalty of preclusion (Fama v. Marchetti, 215 A.D.2d 721, 627 N.Y.S.2d 79;  Pena v. City of New York, 261 A.D.2d 373, 689 N.Y.S.2d 223).   We take no position on the merits of defendant's motion.

MEMORANDUM DECISION.