Young v. Knickerbocker Arena3/15/2001
lure to produce the tape in a timely fashion. In this regard, the record reflects that in response to plaintiffs' November 1997 supplemental notice for discovery and inspection requesting, inter alia, copies of any surveillance tapes, then-counsel for defendants advised that a video surveillance was conducted of Young on June 26, 1998 and that such tape was available for inspection. Counsel further advised that the defense of this action was being transferred to another firm and suggested that plaintiffs' counsel await the execution of the consent to change attorney form before requesting to view the tape. Thereafter, in February 1999, counsel for plaintiffs requested that an unedited copy of the tape be produced immediately. Notwithstanding this request, plaintiffs apparently were not provided with a copy of the surveillance tape until July 1999. Plaintiffs moved to preclude defendants' use of the tape at trial and, by order entered September 15, 1999, Supreme Court (Ferradino, J.) granted plaintiffs' motion.
It is well settled that the trial court is vested with broad discretionary authority to fashion an appropriate remedy where, as here, a party refuses to comply with a valid discovery demand (see, Tempforce Inc. v Municipal Hous. Auth. of City of Schenectady, 263 AD2d 926, 928, lv dismissed 94 NY2d 838). While the remedy of preclusion is indeed drastic (see, Schittino v State of New York, 262 AD2d 824, 826, lv denied 94 NY2d 752), the type and degree of the sanction imposed by the trial court will not be disturbed absent a clear abuse of the court's discretion (see, Saratoga Harness Racing v Roemer, 274 AD2d 887, 888; Osterhoudt v Wal-Mart Stores, 273 AD2d 673, 674). Even accepting that plaintiffs acquiesced to any delay that occurred prior to February 1999, defendants have offered no persuasive reason or justification for their failure to produce the surveillance tape for an additional five months. Absent such an excuse, and in view of the fact that plaintiffs plainly were entitled to production of the tape (see, CPLR 3101 ), we cannot say that Supreme Court erred in granting plaintiffs' motion to preclude (see, Evans v Anheuser-Busch Inc., ___ AD2d ___, ___, 716 NYS2d 268, 269). Accordingly, Supreme Court's September 15, 1999 order is affirmed.
During the course of the trial itself and while attempting to impeach defendants' expert on cross-examination, counsel for plaintiffs twice questioned defendants' expert regarding how much income he derived from testifying on behalf of insurance companies and/or law firms that performed insurance defense work. Counsel for plaintiffs made a similar remark during closing argument. Defendants now appeal from the judgment entered in favor of plaintiffs, contending that counsel's repeated references to insurance were unduly prejudicial and warrant a new trial. We cannot agree.
"The relevant rule is that evidence that alleged tort-feasor carries liability insurance is not admissible as potentially prejudicial * * *" (Allen v Harrington, 156 AD2d 854, 855, lv denied 75 NY2d 708 [citations omitted] [emphasis in original]). Here, however, all counsel established was that Young was examined by a physician who purportedly derived some percentage of his income from performing such evaluations for insurance companies and/or law firms that perform insurance defense work (see, Allen v Harrington, supra, at 855; cf., Skerencak [King] v Fischman, 214 AD2d 1020, 1021). In our view, given the evidence before us, such isolated and indirect references to insurance coverage do not warrant a mistrial (see, Allen v Harrington, supra, at 855; Div-Com Inc. v F.J. Zeronda Inc., 136 AD2d 844, 847; compare, Sobie v Katz Constr. Corp., 189 AD2d 49, 54). Accordingly,
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