I concur separately only because plaintiffs’ omissions seem to me overstated by the concurring memorandum of Justice Kassal and overstated to a significant extent in the dissenting memorandum.
This is an action to recover damages for injuries allegedly sustained by the plaintiff as a result of alleged gas and brake pedal defects in a car manufactured by Volkswagen of America, and to recover damages for further injuries allegedly sustained as a result of the negligence and malpractice of the defendant doctors and hospitals. Inherent in this action is the reality that there are significant details necessarily not in possession of the plaintiff at the inception of the action. When plaintiff’s responses to the demands for bills of particulars and interrogatories are considered in light of this reality, the claimed omissions seem to me much less significant than is stated in the court’s memorandum and in the dissenting opinion. Realistically considered, the plaintiff’s responses are far more substantial and significant than has been acknowledged.
Except for the respect to which Special Term’s exercise of discretion is entitled, I would find it hard to justify the conclusion that the record discloses a willful failure on plaintiff’s part to disclose properly requested information.