Opinion
Submitted — May 17, 2000
August 15, 2000.
In an action to recover damages for breach of contract, the defendant appeals from an order of the Supreme Court, Nassau County (Martin, J.), entered December 13, 1999, which denied its motion to strike the notice of deposition of its expert witness and to quash a subpoena directing its expert to be deposed, and granted the plaintiff's cross motion for leave to depose the defendant's expert witness.
Feldman, Rudy, Kirby Farquharson, P.C., Westbury, N.Y. (Gerald F. Kirby of counsel), for appellant.
McGuire Kehl Nealon, LLP, New York, N.Y. (Arthur V. Nealon of counsel), for respondent.
Before: DAVID S. RITTER, J.P., THOMAS R. SULLIVAN, SONDRA MILLER, DANIEL F. LUCIANO, HOWARD MILLER, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, with costs, the motion is granted and the cross motion is denied.
The Supreme Court erred in denying the defendant's motion and in granting the plaintiff's cross motion for leave to depose the defendant's expert witness. The plaintiff failed to show that the evidence inspected by that witness became unavailable before the plaintiff had the incentive to have its own experts conduct inspections (see, 232 Broadway Corp. v. New York Prop. Ins. Underwriting Assn., 171 A.D.2d 861).