Marchione v. Greenky

Mar 19, 2004
Versions:5 A.D.3d 1044
773 N.Y.S.2d 657
2004 N.Y. App. Div. LEXIS 3206

Appeal from an order of the Supreme Court, Onondaga County (John V. Centra, J.), entered July 2, 2003. The order denied defendants’ motion to preclude plaintiff from offering expert witness testimony.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: We reject the contention of defendants that Supreme Court erred in denying their motion to preclude plaintiff from offering expert witness testimony at the trial of this medical malpractice action. “[P]reclusion for failure to comply with CPLR 3101 (d) is improper ‘unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party’ ” (Young v Long Is. Univ., 297 AD2d 320, 320 [2002], quoting Shopsin v Siben & Siben, 289 AD2d 220, 221 [2001]; see St. Hilaire v White, 305 AD2d 209, 210 [2003]; Silverberg v Community Gen. Hosp. of Sullivan County, 290 AD2d 788, 788-789 [2002]; Peck v Tired Iron Transp., 209 AD2d 979 [1994]). Here, there is no evidence of a willful or intentional failure to disclose by plaintiff, nor did defendants show that they were prejudiced by plaintiffs delay in complying with CPLR 3101 (d). Present—Green, J.P., Pine, Scudder, Gorski and Hayes, JJ.