182 A.D.2d 1109 | N.Y. App. Div. | 1992
Order insofar as appealed from unanimously modified on the law and as modified affirmed with costs to plaintiffs in accordance with the following Memorandum: Plaintiffs brought this action to recover for injuries sustained by Anthony J. Amado when defendants’ dog allegedly knocked him from his bicycle. At the time, defendants’
Supreme Court granted plaintiffs’ motion to the extent of suppressing that portion of Anthony’s deposition testimony that mistakenly identified the dog depicted in photographs 3-6 and denied defendants’ motion for summary judgment in all respects.
Furnishing photographs of a neighbor’s dog in response to the plaintiffs’ demand for photographs of dogs "kept or harbored” or "owned” by defendants prejudiced a substantial right of plaintiffs, regardless of whether it was done with the intention to misrepresent or to deceive. By doing so, defendants’ counsel implicitly represented that the photographs provided were of dogs owned or harbored by defendants. That constituted an abuse of the discovery process, and Supreme Court properly exercised its broad discretion in granting plaintiffs’ motion to suppress that portion of Anthony’s deposition testimony referable to photographs 3-6 (CPLR 3103 [c]; see, Wilk v Muth, 136 Misc 2d 476).
Viewing the evidence in the light most favorable to plaintiffs (see, Smith v Hooker Chems. & Plastics Corp., 89 AD2d 361, 363, appeal dismissed 58 NY2d 824), we find that Supreme Court correctly denied defendants’ motion for summary judgment. There is an issue of fact whether Bogart’s "ten