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Noble v. Cole

Appellate Division of the Supreme Court of New York, Third Department
Dec 9, 1999
267 A.D.2d 702 (N.Y. App. Div. 1999)

Opinion

Decided December 9, 1999

Appeal from an order of the Supreme Court (Tomlinson, J.), entered January 13, 1999 in Fulton County, which, inter alia, denied plaintiffs' motion to amend their response to defendants' demand for expert witness disclosure.

George Abdella, Gloversville, for appellants.

Phelan, Burke Scolamiero (Peter M. Scolamiero of counsel), Albany, for respondents.

BEFORE: MERCURE, J.P., CREW III, PETERS, CARPINELLO and GRAFFEO, JJ.


MEMORANDUM AND ORDER


Plaintiff David Noble and his wife, derivatively, commenced this personal injury action for damages allegedly sustained in an automobile accident that occurred on April 13, 1996 at the intersection of State Route 5 and Pine Street in the City of Amsterdam, Montgomery County. During trial, plaintiffs proffered the testimony of Richard Voorhees, an instructor of emergency vehicle personnel, and, upon defendants' objection, Supreme Court (Ferradino, J.) precluded such expert testimony on the ground that plaintiffs failed to disclose the existence of Voorhees in accordance with the requirements of CPLR 3101 (d)(1)(i). Thereafter, the trial concluded with a hung jury.

Prior to the commencement of a second trial, plaintiffs served defendants with a supplemental response to defendants' CPLR 3101 (d) (1) (i) demand, disclosing Voorhees as an additional expert witness and providing defendants with his curriculum vitae. Upon defendants' refusal to accept said response, plaintiffs moved for an order permitting them to supplement their previous response to the demand for expert witness disclosure. Supreme Court denied plaintiffs' motion and this appeal ensued.

We concur with Supreme Court's determination that the prior order of preclusion became the law of the case, thereby precluding Supreme Court from considering plaintiffs' application for an order permitting the service of an amended response to defendants' demand for expert witness disclosure (see, Ingelston v. Francis, 217 A.D.2d 843). Accordingly, Supreme Court's order is affirmed.

Mercure, J.P., Peters, Carpinello and Graffeo, JJ., concur.

ORDERED that the order is affirmed, with costs.


Summaries of

Noble v. Cole

Appellate Division of the Supreme Court of New York, Third Department
Dec 9, 1999
267 A.D.2d 702 (N.Y. App. Div. 1999)
Case details for

Noble v. Cole

Case Details

Full title:DAVID NOBLE et al., Appellants, v. HOWARD C. COLE et al., Respondents

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Dec 9, 1999

Citations

267 A.D.2d 702 (N.Y. App. Div. 1999)
699 N.Y.S.2d 527

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