Opinion
13484-13485N Index No. 651918/12 Case Nos. 2019-5914 2020-02931
04-01-2021
30-32 WEST 31ST STREET LLC et al., Plaintiffs-Appellants, v. HEENA HOTEL et al., Defendants-Respondents, Terra Nova Title & Settlement Services, Inc., et al., Defendants.
Port & Sava, Lynbrook ( George S. Sava of counsel), for appellants. Ruskin Moscou Faltischek, P.C., Uniondale ( Michael A.H. Schoenberg of counsel), and Sherin and Lodgen, LLP, Boston MA ( Edward S. Cheng of the bar of the Commonwealth of Massachusetts, admitted pro hac vice, of counsel), for respondents.
Port & Sava, Lynbrook ( George S. Sava of counsel), for appellants.
Ruskin Moscou Faltischek, P.C., Uniondale ( Michael A.H. Schoenberg of counsel), and Sherin and Lodgen, LLP, Boston MA ( Edward S. Cheng of the bar of the Commonwealth of Massachusetts, admitted pro hac vice, of counsel), for respondents.
Acosta, P.J., Kapnick, Webber, Kennedy, JJ.
Orders, Supreme Court, New York County (Joel M. Cohen, J.), entered July 12, 2019 and on or about January 9, 2020, which, respectively, to the extent appealed from as limited by the briefs, granted defendants Heena Hotel LLC, Nayan Patel, and NCBL NY, LLC's motion to strike the report and trial testimony of plaintiffs' expert, and denied plaintiffs' motion for summary judgment and defendants' motion for summary judgment except as to the accounting cause of action, unanimously affirmed, without costs.
The court providently struck plaintiffs' expert disclosure, which failed to disclose the substance of the facts and opinions on which the expert was expected to testify ( see CPLR 3101[d][1] ; Rules of the Commercial Division of the Supreme Court ([ 22 NYCRR 202.70 ] rule 13[c]; see e.g. Carter v. Isabella Geriatric Ctr., Inc., 71 A.D.3d 443, 896 N.Y.S.2d 332 [1st Dept. 2010] ; Galaz v. Sobel & Kraus, 280 A.D.2d 427, 428, 721 N.Y.S.2d 623 [1st Dept. 2001] ).
Issues of fact preclude summary dismissal of plaintiffs' constructive trust, breach of contract, and fraud claims and defendants' counterclaims. Although the absence of expert testimony supporting plaintiffs' claims may affect the weight of their proof of damages at trial, it does not warrant dismissal of those claims at this stage ( see e.g. LaSalle Bank N.A. v. Nomura Asset Capital Corp., 72 A.D.3d 409, 411, 899 N.Y.S.2d 15 [1st Dept. 2010] ).
We have considered the parties' remaining arguments for affirmative relief and find them unavailing.