BAEZ v. ARROW LINEN SUPPLY COMPANY INC (2004)

In an action, inter alia, to recover damages for personal injuries, the defendants Arrow Linen Supply Company, Inc., and Kerwin D. Seepersad appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (D. Schmidt, J.), dated August 21, 2003, as granted that branch of the plaintiff's cross motion which was to preclude the defendant Kerwin D. Seepersad from testifying at trial.

ORDERED that the order is modified by adding to the end of the second decretal paragraph the words “unless he appears for a deposition at a time and place mutually agreeable to the parties, but in no event later that 30 days before the trial”;  as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

Under the circumstances of this case, the Supreme Court improvidently exercised its discretion in granting that branch of the cross motion which was to preclude the defendant Kerwin D. Seepersad from testifying at trial, without providing him another opportunity to be deposed before the trial (see Cianciolo v. Trism Specialized Carriers, 274 A.D.2d 369, 711 N.Y.S.2d 441).