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GORELIK v. LUNA PARK VILL., INC.

201 A.D.2d 435 (1994)

609 N.Y.S.2d 775

Shalan Gorelik, an Infant, by His Mother and Natural Guardian, Olga Gorelik, et al., Plaintiffs, v. Luna Park Village, Inc., Defendant Luna Park Housing Corp., Third-Party Plaintiff-Appellant, v. Marvin Gold Management Co., Inc., Third-Party Defendant-Appellant Luna Park Housing Corp., Second Third-Party Plaintiff-Appellant, v. Prudential Building Maintenance Corp., Second Third-Party Defendant-Respondent Luna Park Housing Corp., Fourth-Party Plaintiff-Appellant, v. Flair Maintenance Company, Fourth-Party Defendant-Appellant

Appellate Division of the Supreme Court of the State of New York, First Department.

February 24, 1994

It was not an abuse of discretion for the court to conclude that there was no willful misconduct justifying the drastic sanction of preclusion (see, e.g., Balsam v Nicolosi Bldg. Co., 36 A.D.2d 533, 534), particularly given the lack of record evidence to support defendant's speculation that the records of the unidentified ophthalmologist will show plaintiff infant's hydrocephalus condition to be preexisting.

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