Opinion
13588N Index No. 153839/16 Case No. 2020-01736
04-13-2021
Tina LOUISE, Plaintiff–Respondent, v. HAMPTON JITNEY, INC., Defendant–Appellant.
Gerber Ciano Kelly Brady LLP, Garden City (Robert W. Berbenich of counsel), for appellant.
Gerber Ciano Kelly Brady LLP, Garden City (Robert W. Berbenich of counsel), for appellant.
Manzanet–Daniels, J.P., Mazzarelli, Oing, Kennedy, JJ.
Order, Supreme Court, New York County (Adam Silvera, J.), entered February 25, 2020, which granted plaintiff's motion for discovery sanctions to the extent of precluding defendant's expert from testifying at trial or the use of his report, unanimously affirmed, without costs.
"Preclusion of expert evidence on the ground of failure to give timely disclosure, as called for in CPLR 3101(d)(1)(i), is generally unwarranted without a showing that the noncompliance was willful or prejudicial to the party seeking preclusion" ( Martin v. Triborough Bridge & Tunnel Auth., 73 A.D.3d 481, 482, 901 N.Y.S.2d 193 [1st Dept. 2010] ). Here, defendant served its expert notice after the note of issue, but prior to a trial date being set, and thus it was not untimely (see Rivera v. New York City Hous. Auth., 177 A.D.3d 499, 112 N.Y.S.3d 72 [1st Dept. 2019] ; Haynes v. City of New York, 145 A.D.3d 603, 45 N.Y.S.3d 387 [1st Dept. 2016] ; Ramsen A. v. New York City Hous. Auth., 112 A.D.3d 439, 976 N.Y.S.2d 73 [1st Dept. 2013] ). Timeliness, however, is not the issue here. Rather, the issue is that defendant's expert reached his conclusion regarding the alleged accident by relying nearly entirely upon evidence, i.e., data from the bus's recording systems, that had been demanded during discovery and directed to be exchanged in several court orders, the existence of which defendant had denied. Defendant did not attempt to clarify its initial response, advise the motion court or plaintiff when it obtained the material, or explain why it did not update plaintiff's counsel immediately upon its receipt (see Oversea Chinese Mission v. Well–Come Holdings, Inc., 145 A.D.3d 634, 42 N.Y.S.3d 818 [1st Dept. 2016] ). Under such circumstances, the motion court was well within its discretion to preclude the material, and by extension, the expert and his report.