William Hawksby, Appellant, v. New York Hospital et al., Respondents

William Hawksby, Appellant, v New York Hospital et al., Respondents. [MAJORITY] On a prior appeal to this court (162 AD2d 179), we directed defendants to supply plaintiff with typewritten exemplars of the text of the disputed operative report reproduced on Dr. Antonacci’s office typewriters. A prior direction by the IAS court to defendants had resulted in production of more limited typewritten exemplars from non-party Dr. Antonacci. This time, however, in April 1991, defendants’ attorney advised plaintiff’s attorney that Dr. Antonacci, in the course of moving his offices, had discarded typewriters. The IAS court denied plaintiff’s preclusion motion,, finding the parties’ rights were better balanced simply by recognition of plaintiff’s right to argue to the jury that the operative report was a recent fabrication. This was not an abuse of discretion, there being no showing of willful disobedience of a court order by defendants, or indeed any control by defendants over the actions of non-party Dr. Antonacci, whose cooperation was essential to defendants’ compliance with our prior order. (Lowitt v Burton I. Korelitz, M.D., P. C., 152 AD2d 506.) Concur — Sullivan, J. P., Carro, Kassal and Smith, JJ.