Opinion
July 27, 1998
Appeal from the Supreme Court, Rockland County (Miller, J.).
Ordered that on the Court's own motion, the notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701 [c]); and it is further,
Ordered that the order is affirmed, with costs.
The order appealed from did not determine a motion made on notice, and therefore is not appealable as of right (see, Greater N.Y. Mut. Ins. Co. v. Lancer Ins. Co., 203 A.D.2d 515; Delloiaco v. City of New York, 174 A.D.2d 705). However, under the particular facts presented, we deem the notice of appeal to be an application for leave to appeal, and grant the application in the interest of justice (see, e.g., Sena v. Nationwide Mut. Fire Ins. Co., 198 A.D.2d 345; Greenfield v. Greenfield, 147 A.D.2d 440).
The Supreme Court granted the defendants' application to preclude the plaintiff from producing any expert testimony based on the plaintiffs failure to comply with CPLR 3101 (d) (1) (i) until the eve of trial, and until after the defendants' in limine application had been made. The Supreme Court has broad discretion in this matter, which involves both supervision of pretrial disclosure and management of its own trial calendar (see, e.g., Marra v. Hensonville Frozen Food Lockers, 189 A.D.2d 1004). The Supreme Court, in its decision, stated that an attorney who was "of counsel" for the plaintiff, during the course of a previous appearance, had advised that "expert witness disclosure had been completed". The plaintiff points to nothing in the record to contradict this, or any of the other findings contained in the Supreme Court's decision. Under all the circumstance's, we conclude that the Supreme Court did not improvidently exercise its discretion (see, e.g., Interfilm, Inc. v. Advanced Exhibition Corp., 249 A.D.2d 242; Lyall v. City of New York, 228 A.D.2d 566; Vigilant Ins. Co. v. Barnes, 199 A.D.2d 257).
Bracken, J. P., Thompson, Pizzuto and Altman, JJ., concur.