Practice point: The Appellate Division held that the Supreme Court improvidently
exercised its discretion in granting the defendants' motion to preclude
the plaintiff's expert from testifying at the retrial. There was nothing in the record to support a conclusion that the
plaintiff's delay in retaining his expert or in serving his expert
information was intentional or willful. In addition, any potential
prejudice to the defendants was ameliorated by the parties' agreement to a two-month adjournment
of the retrial.
Student note: CPLR 3101(d)(1)(i) does not require a response to a demand for
expert witness information at any specific time nor does it mandate
that a party be precluded from proffering 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.
Case: Burbige v. Siben & Ferber, NY Slip Op 01426 (2d Dept. 2014).
Here is the decision.
Tomorrow's issue: A trip and fall.
