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KELLY RAMOS, Plaintiff-Respondent, v. SHENDELL REALTY GROUP, INC., ET AL., Defendants-Appellants.

Although defendants were precluded by a prior order (Sallie Manzanet, J.) from offering evidence on the issue of liability as a result of their failure to produce a witness for examination before trial, their answer was not stricken and they were not precluded from establishing the affirmative defense of comparative negligence asserted therein. Thus, since the purpose of the preclusion order was to make the demanding party whole ( see Northway Eng'g v. Felix Indus., 77 N.Y.2d 332, 337), by granting plaintiff partial summary judgment on the issue of liability despite alleged factual disputes regarding plaintiff's comparative negligence, which might possibly be established through cross-examination of plaintiff's witnesses, plaintiff was granted more relief than was warranted by defendants' failure to produce a witness for pretrial examination ( id.).

Accordingly, plaintiff's motion should have been denied in all respects.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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RAMOS v. SHENDELL REALTY GROUP, INC
(Jun 8, 2004)