PENA v. CITY OF NEW YORK (1999)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Steinhardt, J.), dated October 30, 1997, which, inter alia, granted the defendant's motion to set aside the jury verdict in favor of the plaintiff and directed that judgment be entered in favor of the defendant dismissing the complaint.

ORDERED that the order is affirmed, with costs.

After jury selection and prior to trial, the plaintiff sought to preclude the testimony of a lifeguard on the ground that the defendant failed to comply with pretrial discovery orders to disclose her identity.   However, since there is no evidence in the record of willful or contumacious conduct on the part of the defendant's attorney in failing to disclose the identity of the lifeguard, the court did not err in allowing the lifeguard to testify (see, Malcolm v. Darling, 233 A.D.2d 425, 649 N.Y.S.2d 480;  Bermudez v. Laminates Unlimited, 134 A.D.2d 314, 520 N.Y.S.2d 791).

In addition, the plaintiff failed to show that the defendant's failure to scan the pool and respond immediately to his accident caused an exacerbation of his spinal injuries (see, Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 543 N.Y.S.2d 29, 541 N.E.2d 29;  Sheehan v. City of New York, 40 N.Y.2d 496, 387 N.Y.S.2d 92, 354 N.E.2d 832).   Accordingly, the Supreme Court properly set aside the jury verdict in favor of the plaintiff and directed a verdict in favor of the defendant dismissing the complaint.

MEMORANDUM BY THE COURT.