Anagnostaros v. 81st Street Residence Corp.

—Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered April 2, 1999, which granted defendant Associated Supermarkets, Inc.’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, the facts, and in the exercise of discretion, without costs, the motion denied and the complaint reinstated, without prejudice to renewal after defendant has an opportunity to depose plaintiffs witness. While we are aware that the imposition of sanctions for discovery misfeasance is a matter best left to the trial court’s discretion (CPLR 3126; Gomez v New York City Hous. Auth., 217 AD2d 110, 114; Tavarez v DeLange, 190 AD2d 568), we find that the IAS Court improvidently exercised its discretion in failing to consider the affidavit of plaintiffs witness. We are not convinced that plaintiffs failure to produce the witness, of whom she was allegedly unaware, at an earlier stage of the proceedings was willful or contumacious and warranted the penalty of preclusion (Fama v Marchetti, 215 AD2d 721; Pena v City of New York, 261 AD2d 373). We take no position on the merits of defendant’s motion. Concur — Nardelli, J. P., Tom, Lerner, Rubin and Saxe, JJ.