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

Matthew KOZIARZ, Plaintiff-Respondent, v. NEW YORK CITY TRANSIT AUTHORITY, et al., Defendants-Appellants.

Decided: May 17, 2007

MARLOW, J.P., NARDELLI, GONZALEZ, SWEENY, MALONE, JJ. Steve S. Efron, New York, for appellants. Shestack & Young, LLP, New York (Rita F. Aronov of counsel), for respondent.

Order, Supreme Court, New York County (Robert D. Lippmann, J.), entered June 19, 2006, which denied defendant's motion to supplement its response to plaintiff's discovery demand by turning over a “trip sheet” containing the names of two witnesses, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the motion granted.

The court exercised its discretion improvidently in denying defendant's motion.   There is no evidence that defendant's failure to turn over the trip sheet was willful or in bad faith, or that plaintiff will be prejudiced by the late disclosure, and denying defendant permission to supplement its discovery response by turning over the trip sheet effectively precluded evidence from the only independent eyewitnesses to the accident (see Scherrer v. Time Equities Inc., 27 A.D.3d 208, 810 N.Y.S.2d 454 [2006];  Schiavone v. Brinewood Rod & Gun Club, 283 A.D.2d 234, 237, 726 N.Y.S.2d 615 [2001];  Anagnostaros v. 81st St. Residence Corp., 269 A.D.2d 150, 702 N.Y.S.2d 72 [2000] ).