Zegarelli v. Hughes

—Appeal from a judgment of Supreme Court, Oneida County (Parker, J.), entered December 3, 2001, upon a jury verdict in favor of plaintiffs. It is hereby ordered that the judgment so appealed from be and the same hereby is affirmed without costs. Memorandum: Plaintiffs commenced this action seeking damages for injuries sustained by John N. Zegarelli (plaintiff) when the vehicle that he was driving was forced into a snowbank by a vehicle driven by defendant. Defendant appeals from a judgment entered upon a jury verdict in favor of plaintiffs in the total amount of $131,919.44. Defendant contends that Supreme Court abused its discretion in granting plaintiffs’ motion to preclude defendant from presenting in evidence a surveillance videotape of plaintiff allegedly shoveling snow after the accident. We reject that contention. Prior to trial plaintiffs requested full disclosure of any and all existing [917] videotapes pursuant to CPLR 3101 (i), and defendant provided plaintiffs with a copy of a surveillance videotape that contained two breaks in motion. Plaintiffs sought preclusion upon discovering during trial that the original eight-millimeter surveillance tape of plaintiff had not been disclosed, and the court properly granted plaintiffs’ motion (see Brady v County of Nassau, 234 AD2d 408 [1996]; Schoffel v Velez, 118 AD2d 492, 493 [1986]; cf. Barrowman v Niagara Mohawk Power Corp., 252 AD2d 946 [1998], lv denied 92 NY2d 817 [1998]). In any event, even assuming, arguendo, that the court erred in granting plaintiffs’ motion, we conclude that the error is harmless. Plaintiff testified at trial that he had tried to shovel snow following the accident, and several physicians testified that plaintiff’s range of motion following the accident varied on a daily basis. All concur except Kehoe, J., who dissents and votes to reverse in accordance with the following memorandum.