Opinion
# 2019-050-016 Claim No. 129435 Motion No. M-93607
04-12-2019
JOANNE D. TEXTOR v. THE STATE OF NEW YORK
Downing & Peck, P.C. By: Ernest J. Peck, Esq. Hon. Letitia James, Attorney General By: Alex J. Freundlich, Assistant Attorney General
Synopsis
Defendant's motion to preclude the trial testimony of claimant's expert on the grounds that claimant failed to provide said expert's qualifications as required by CPLR 3101 (d) is granted.
Case information
| UID: | 2019-050-016 |
| Claimant(s): | JOANNE D. TEXTOR |
| Claimant short name: | TEXTOR |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption is amended sua sponte to reflect the only proper defendant, the State of New York. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129435 |
| Motion number(s): | M-93607 |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. LYNCH |
| Claimant's attorney: | Downing & Peck, P.C. By: Ernest J. Peck, Esq. |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Alex J. Freundlich, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 12, 2019 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The claim herein alleges that claimant suffered personal injury when she slipped and fell on "an accumulation of snow, slush, and ice" in the vicinity of an entrance ramp at Jones Beach State Park on February 11, 2017. Defendant has moved to preclude the trial testimony of claimant's expert, Dr. William Marletta on the grounds that claimant failed to provide Dr. Marletta's qualifications as required by CPLR 3101 (d). Defendant argues further that Dr. Marletta's proposed testimony concerning snow and ice removal is not a subject calling for technical knowledge. Claimant opposes the motion. A trial in this matter is scheduled to begin April 16, 2019.
CPLR 3101 (d) (1) (i) requires each party to identify each expert the party intends to call at trial and to "disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion." Untimely compliance with this provision does not necessarily result in preclusion of the expert's testimony. Rather, when a party has shown good cause for the untimely retention of the expert, the Court may make whatever order is just.
The Court possesses broad discretion in its supervision of expert disclosure under CPLR 3101 (d) (1) (see Bernardis v Town of Islip, 95 AD3d 1050 [2d Dept 2012]). "A determination regarding whether to preclude a party from introducing the testimony of an expert witness at trial based on the party's failure to comply with CPLR 3101 (d) (1) (i) is left to the sound discretion of the court" (Rivera v Montefiore Med. Ctr., 28 NY3d 999 [2016], quoting McGlauflin v Wadhwa, 265 AD2d 534 [2d Dept 1999]).
Here, claimant's expert disclosure statement, dated March 1, 2019, identified Dr. Marletta as a "certified safety professional" yet did not include his curriculum vitae or otherwise detail his qualifications. Defendant states, and claimant concedes, that Dr. Marletta's qualifications were first provided to defendant after the filing of this motion and approximately a month prior to the scheduled trial date. Claimant states that the late disclosure of Dr. Marletta's qualifications was an oversight. Additionally, claimant's expert disclosure statement outlines his testimony in general strokes which are either insufficiently detailed to provide defendant with reasonable notice of what specifically Dr. Marletta would opine about or inappropriately relate to matters which are the ultimate issue at trial, namely whether defendant's actions or omissions were negligent and the proximate cause of claimant's injury (see Nevins v Great Atlantic & Pacific Tea Co., 164 AD2d 807 [1st Dept 1990] (removal of ice and snow not a proper subject for expert testimony). Further, as the claim did not allege any violations of construction standards, codes or ordinances, the maintenance and construction of the ramp is "not a subject calling for technical knowledge possessed by an expert and beyond the ken of the typical juror" (Franco v Muro, 224 AD2d 579 [2d Dept 1996]). Indeed, it is reversible error to allow the trial testimony of an expert regarding matters that do "not exceed the scope of common knowledge" (Berger v Tarry Fuel Oil Co., 32 AD3d 409 [2d Dept 2006], citing Nevins v Great Atlantic & Pacific Tea Co., 164 AD2d 807 [1st Dept 1990]).
Here, the Court finds that Dr. Marletta's proposed testimony falls within the realm of common knowledge or was insufficiently described to satisfy CPLR 3101 (d). Additionally, claimant's expert disclosure under CPLR 3101 (d) (1) (i) was deficient for failure to timely describe Dr. Marletta's qualifications. For the foregoing reasons, defendant's motion is granted.
April 12, 2019
Hauppauge, New York
STEPHEN J. LYNCH
Judge of the Court of Claims The following papers were read and considered by the Court on the defendant's motion: 1. Notice of Motion, Affirmation in Support with Exhibits. 2. Affirmation in Opposition. 3. Reply Affirmation in Support of Motion.