Opinion
2012-11-14
Percy JACOBS, respondent, v. Milton NUSSBAUM, et al., appellants, et al., defendants.
Mound Cotton Wollan & Greengrass, New York, N.Y. (Paul S. Danner of counsel), for appellants. The Jacob D. Fuchsberg Law Firm, LLP, New York, N.Y. (Leslie Kelmachter and Christopher Nyberg of counsel), for respondent.
Mound Cotton Wollan & Greengrass, New York, N.Y. (Paul S. Danner of counsel), for appellants. The Jacob D. Fuchsberg Law Firm, LLP, New York, N.Y. (Leslie Kelmachter and Christopher Nyberg of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the defendants Milton Nussbaum and Sarah Nussbaum appeal, by permission, from an order of the Supreme Court, Kings County (Schack, J.), dated November 22, 2011, which granted the plaintiff's application for additional time to retain expert witnesses and provide expert witness disclosure pursuant to CPLR 3101(d) and, thereupon, adjourned their motion for summary judgment dismissing the complaint insofar as asserted against them.
ORDERED that the order is affirmed, with costs.
“[A] party's failure to disclose its experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness does not divest a court of the discretion to consider an affirmation or affidavit submitted by that party's experts in the context of a timely motion for summary judgment” ( Rivers v. Birnbaum, ––– A.D.3d –––, 2012 N.Y. Slip Op 06935 [2d Dept. 2012] ). Here, considering all of the relevant circumstances, the Supreme Court providently exercised its discretion in granting the plaintiff's application for additional time to retain expert witnesses and provide expert witness disclosure pursuant to CPLR 3101(d)( id. at *;Hayden v. Gordon, 91 A.D.3d 819, 820, 937 N.Y.S.2d 299;Ocampo v. Pagan, 68 A.D.3d 1077, 1077–1078, 892 N.Y.S.2d 452).
The appellants' remaining contentions are without merit.