Summary
In Marchione v Greenky, 5 AD3d 1044, 773 N.S.2d 657, it was clear that there was no evidence of a willful failure to disclose by plaintiff and defendants failed to make a compelling show that they were prejudiced by plaintiff's delay in complying with CPLR § 3101(d).
Summary of this case from Gantiva v. Sky Realty, Inc.Opinion
CA 03-02093.
Decided March 19, 2004.
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.
MARTIN, GANOTIS, BROWN, MOULD AND CURRIE, P.C., DE WITT (JOHN GANOTIS OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
ROBERT E. LAHM, PLLC, SYRACUSE (MATTHEW E. WHRITENOUR OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: GREEN, J.P., PINE, SCUDDER, GORSKI, AND HAYES, JJ.
MEMORANDUM AND ORDER
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 A.D.2d 320, 320, quoting Shopsin v. Siben Siben, 289 A.D.2d 220, 221; see St. Hilaire v. White, 305 A.D.2d 209, 210; Silverberg v. Community Gen. Hosp. of Sullivan County, 290 A.D.2d 788, 788-789; Peck v. Tired Iron Transp., 209 A.D.2d 979). Here, there is no evidence of a willful or intentional failure to disclose by plaintiff, nor did defendants show that they were prejudiced by plaintiff's delay in complying with CPLR 3101(d).