
    Carol Gorman, Respondent, v Home Properties Bari Manor, LLC, Appellant. (And a Third-Party Action.)
    [857 NYS2d 202]
   In an action to recover damages for personal injuries, the defendant appeals from a judgment of the Supreme Court, Westchester County (Donovan, J.), dated August 20, 2007, which, upon an order of the same court, inter alia, granting the plaintiffs’ oral application to strike its answer, upon directing a verdict on the issue of liability in favor of the plaintiff, and upon a jury verdict as to damages, is in favor of the plaintiff and against it in the principal sum of $300,000.

Ordered that on the Court’s own motion, the notice of appeal from the order is deemed a premature notice of appeal from the judgment (see CPLR 5520 [c]); and it is further,

Ordered that the judgment is reversed, on the facts and in the exercise of discretion, the plaintiffs’ application to strike the defendant’s answer is denied, the order is modified accordingly, and the matter is remitted to the Supreme Court, Westchester County, for a new trial, with costs to abide the event.

The record reveals that during the liability phase of the bifurcated trial in this case, the Supreme Court struck the answer of the defendant and granted judgment as a matter of law on the issue of liability in favor of the plaintiff. The matter then proceeded to a trial on the issue of damages. The Supreme Court premised its decision to strike the answer upon its finding that, among other things, the defendant had failed to comply with a judicial subpoena duces tecum served upon it by the plaintiff shortly before the trial date.

The Supreme Court improvidently exercised its discretion in granting the plaintiff’s application to strike the defendant’s answer (see CPLR 2308 [a]). The defendant’s employee was confused about what documents had to be produced, and the defendant offered to submit the correct documents immediately via facsimile. Accordingly, a new trial is warranted. Rivera, J.P., Lifson, Miller, Garni and Eng, JJ., concur.  