Sydnee Gordon, Plaintiff‑Appellant, ‑against‑ The City of

New York, Defendant, Lexington‑79th Corporation,

Defendant‑Respondent.

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

245 A.D.2d 184; 666 N.Y.S.2d 186

December 18, 1997, Decided

December 18, 1997, Entered

COUNSEL: For Plaintiff‑Appellant: Marc A. Stadtmauer.

For Defendant‑Respondent: Carol R. Finocchio.

JUDGES: Ellerin, J.P., Wallach, Mazzarelli, Andrias, Colabella, JJ.

OPINION:

Order, Supreme Court, New York County (Norman Ryp, J.), entered March 14, 1997,

which, insofar as appealed from, denied plaintiff's motion for disclosure

sanctions against defendant‑respondent for its failure to produce two written

post‑accident repair estimates for the sidewalk where plaintiff fell,

unanimously modified, on the facts, to direct production of such estimates, and

otherwise affirmed, without costs.

The requested repair estimates, even if ultimately held inadmissible at trial

because made after the accident, are discoverable since they may shed light on

the issue of who controlled or maintained the area of the sidewalk where the

accident occurred (see, Olivia v Gouze, 285 A.D. 762, 765, 140 N.Y.S.2d 438,

affd 1 N.Y.2d 811, 153 N.Y.S.2d 71, 135 N.E.2d 602; cf., Cleland v 60‑02

Woodside Corp, 221 A.D.2d 307, 633 N.Y.S.2d 529). We have considered plaintiff's

argument that defendant's failure to produce the repair estimates was

willful and contumacious, and find that defendant's conduct does not warrant

sanctions at this time. Plaintiff's argument concerning the sufficiency of

defendant's affidavit attesting to the nonexistence of certain documents that

were directed to be produced in the order on appeal should be addressed in the

first instance to the motion court.

ENTERED: DECEMBER 18, 1997