Casas v. Romanelli

—In an action to recover damages for personal injuries, the defendant Demi-God O.A., Inc., doing business as Station Stop appeals from an order of the Supreme Court, Westchester County (Burrows, J.), dated August 21, 1995, which granted the plaintiff’s application for an order precluding the testimony of the defendant Damon Romanelli at trial unless he appeared and testified at an examination before trial, at least 60 days prior to the commencement of trial. Ordered that the order is affirmed, with costs. A conditional order is an appropriate remedy when it affords the party who is refusing to comply with a disclosure order an additional opportunity to comply prior to the imposition of the final sanction (see, Gamble v Anlynne, Inc., 199 AD2d 303; see also, Gonzalez v National Car Rental, 178 AD2d 116; Briley v Morriseau, 99 AD2d 524). The plaintiff reasonably sought to protect himself from surprise at trial occasioned by the testimony of the defendant Damon Romanelli, an employee of the corporate defendant, who had refused to submit to pre-trial discovery, and the court did not improvidently exercise its discretion by conditioning preclusion of this defendant’s [446] testimony upon his continued failure to testify at an examination before trial (see, CPLR 3126 [2]). Rosenblatt, J. P., Thompson, Santucci, Altman and Hart, JJ., concur.