Plaintiff, who alleged an injury while skiing, claimed that defendants had improperly set the skis' bindings so that they did not release during her fall. Two weeks before trial, defendants served plaintiff with expert witness information pursuant to CPLR 3101(d). This information included the report of an expert who opined that the alleged failure of the bindings to release could not have caused plaintiff's injury. Instead of seeking an adjournment of the trial, plaintiff moved to preclude defendants' expert from testifying. The motion was denied, and, at trial, the jury found that, while defendants were negligent, their negligence was not a substantial factor in causing plaintiff's injury.

The Second Department found that plaintiff's motion to preclude had properly been denied, in Rowan v. Cross County Ski & Skate, Inc., which was decided on July 31, 2007. The court said that CPLR 3101(d)(1)(i) does not require a party to respond to a demand for expert witness information at any specific time, nor does it mandate that a party be precluded from oferring expert testimony merely because of noncompliance with the statute, unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party. The court found nothing in the record to support a conclusion that defendants' delay in retaining their expert or in serving their expert information was intentional or willful. Furthermore, disclosure of the expert information was not made on the eve of trial since plaintiff had two weeks within which to review the material prior to the trial date. Moreover, said the court, any potential prejudice to the plaintiffs could have been eliminated by an adjournment.