Azzu v. Sherman

—In a medical malpractice action, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Kelly, J.), dated October 12, 1984, as, upon the defendants’ motion to sanction the plaintiffs for failure to make disclosure in accordance with a prior order of the same court, granted the same to the extent of precluding the plaintiffs from offering any evidence at trial with respect to a certain X ray.

Order reversed, insofar as appealed from, with costs, and defendants’ motion denied.

The evidence before Special Term was insufficient for it to conclude reasonably that the plaintiffs had willfully and contumaciously failed to comply with its prior discovery order. It was therefore an abuse of discretion for Special Term to impose the sanction of preclusion for nondisclosure (see, Donner v 50 Tom Corp., 99 AD2d 504). Plaintiffs’ attorneys claimed that the missing X ray was never in their possession. Lazer, J. P., Mangano, Bracken and Niehoff, JJ., concur.