Majcher v. Federal Machine Co.

—Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Supreme Court erred in granting that part of plaintiffs’ cross motion to preclude defendant’s use of the affidavits and testimony of a witness. The record fails to establish that defendant willfully failed to disclose the existence of that witness to support a preclusion order (see, CPLR 3126 [2]). Defendant’s counsel advised the court and plaintiffs’ counsel of the existence of the witness within five days of…