Opinion
Index No. 704048/18
09-26-2023
DOMINIQUE VOLTAIRE, Plaintiff, v. THE CITY OF NEW YORK, PORT AUTHORITYOF NEW YORK AND NEW JERSEY and DELTA AIRLINES, Defendants,
Unpublished Opinion
PRESENT: HON. TIMOTHY J. DUFFICY Judge
INTERIM ORDER
TIMOTHY J. DUFFICY, J.S.C.
In an Order, dated August 23, 2023 Justice Catapano-Fox, issued an order directing that jury selection on this matter commence on September 18, 2023 (see NYSCEF Doc. No. 256). On September 18, 2023, this matter was assigned by the Trial Scheduling Part to Part 35 for jury selection and trial.
A review of the court file reflects that in the interim, counsel for defendant Delta Airlines (movant) had submitted three (3) proposed Orders To Show Cause (OTSC). Each OTSC sought, in sum and substance, to stay or adjourn the trial date of September 18, 2023 so that counsel for Delta and its experts could review allegedly untimely medical and expert witness exchanges by the plaintiff, in the alternative to vacate the Note of Issue, or, in the alternative, to preclude the plaintiff from presenting certain evidence at trial.
The court file further reflects that the proposed OTSC, submitted under Motion Sequence No. 16, was denied by Justice Catapano-Fox on September 13, 2023 (see NYSCEF Doc. No. 266), on the grounds that "movant failed to demonstrate good cause and the parties stipulated to the 9/18/2023 trial date" (see NYSCEF Doc. No. 266). Movant then submitted another OTSC, on September 13, 2023, under Motion Sequence No. 17, seeking similar relief, which was largely identical to the previous OTSC, except that it also refers to the plaintiffs liability expert exchange of Vincent Ettari, P.E., dated September 13, 2023. On September 14, 2023, Justice Joseph Risi denied that OTSC "with leave to renew before the assigned trial judge” (see NYSCEF Doc. No. 274). On Saturday, September 17, 2023, yet another OTSC (Motion Sequence No. 18) was submitted, making virtually the same arguments and seeking the same relief. Justice McKetney-Butler declined to sign that OTSC since Justice Risi had ordered that it be decided by the trial judge.
On September 18, 2023, this matter was conferenced before the court's principal law clerk, and the Court directed that each side submit papers with the defendant focusing on why the Court should preclude the plaintiff from offering the proposed testimony and the plaintiff focusing on why the testimony should not be precluded.
The Court reviewed the papers and the matter was again conferenced before this Court on September 20, 2023. After unsuccessful attempts were made to settle the case, for the reasons stated on the record, on September 20, 2023, this Court denied the defendant's application to preclude the plaintiff's medical witnesses: Dr. Michael Gerling and Dr Joseph Pyun. The Court reserved decision on the motion to preclude the plaintiffs liability expert Vincent Ettari P.E, but also stated it was considering allowing the defendant time to obtain its own liability expert rather than precluding the plaintiff's liability expert. The case was adjourned to September 22, 2023 and then to September 25, 2023. On that date, another settlement conference was held and then arguments took place on the record. Defendant's papers were marked as Court Exhibit "A", thje plaintiff's papers were marked as Exhibit "B" and the "supplemental notice of liability expert exchange" of Mr. Ettari was marked as Exhibit "C".
As stated on the record, on September 20, 2023, in regards to Dr. Gerling and Dr. Pyun, the Court denies the application to preclude. Both Dr. Gerling and Dr. Pyun are treating physicians and reports and authorizations for these doctors have been previously provided. The Court does not agree that the defendant will be prejudiced by the fact that in their reports, dated August 25, 2023, the doctors discuss the plaintiff's need for future surgery. This is a valid medical opinion, as to a possible complication of the plaintiffs alleged injuries, and the defendant cannot claim surprise in view of the fact that the need for future surgery has been in the bill of particulars and in supplemental bills of particulars (see Hammond v Welsh, 29 A.D.3d 518 [2d Dept 2006]; Holshek v Stokes, 122 A.D.2d 777 [2d Dept 1986]); Banks v City of New York, 92 A.D.3d 591 [1st Dept 2012]; Han Soo Lee v Riverhead Bay Motors, 57 A.D.3d 283 [1st Dept 2008]. Accordingly, defendant's application to preclude the testimony of Dr. Michael Gerling and Dr Joseph Pyun is denied.
As to Vincent Ettari P.E., the plaintiffs liability expert, for the reasons stated on the record, on September 25, 2023, the Court reaches a different conclusion. The record reflects that Mr. Ettari was first disclosed as an expert witness on September 24, 2021. The expert exchange of that date states, in sum and substance, that the defendants were negligent in violating the New York City Building Code "and other relevant statutes".
However, on September 13, 2023, only five (5) days before trial, the plaintiff served a much more detailed "supplemental notice of liability expert exchange", including a 41 page affidavit from Mr. Ettari in which he alleges that the defendants not only violated the New York City Building Code, but also violated, inter alia, numerous OSHA code sections and New York State Building Code sections. It is undisputed that OSHA and the New York State Building Code were not mentioned in the prior expert exchange or in any bill of particulars.
The Court finds that this late disclosure of the plaintiff's expert causation theory five days before trial is prejudicial to the defendant's ability to prepare for trial as they have not had adequate time to consult or retain their own expert (see Rocco v Ahmed, 146 A.D.3d 836 [2d Dept 2017]; Durant v Shuren, 33 A.D.3d 843, 844 [2d Dept 2006]; Desert Storm Constr. Corp., v SSSS Ltd. Corp., 18 A.D.3d 421, 422 [2d Dept 2005]). Therefore, as stated on the record, on September 25, 2023, jury selection is adjourned to October 16, 2023 so that the defendants can have the opportunity to consult or retain their own liability expert.
Finally, the court record indicates that the instant action was dismissed as against defendants The City of New York and the Port Authority of New York and New Jersey by the Order of Justice Joseph J. Esposito, entered on August 25, 2020 (see NYSCEF Doc. No. 144), and subsequently affirmed by Appellate Division, Second Department, on June 7, 2023 (see NYSCEF Doc No. 238).
Accordingly, it is
ORDERED that defendants The City of New York and the Port Authority of New York and New Jersey shall be stricken from the caption, as this matter has been dismissed as against them; and it is further
ORDERED that the caption shall be amended to read as follows:
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS
DOMINIQUE VOLTAIRE, Plaintiff,
-against-
DELTA AIRLINES,
Defendant.; and it is
ORDERED that the Clerk of Queens County is directed, upon receipt of this Order, to amend the caption, as set forth above; and it is further
ORDERED defendant's motion to preclude the testimony of Dr. Michael Gerling and Dr Joseph Pyun is denied; and it is further
ORDERED defendant's motion to preclude the testimony of Vincent Ettari P.E. is granted solely to the extent that jury selection is adjourned to October 16, 2023, and is otherwise denied; and it is further
ORDERED that no motions or Orders to Show Cause are to be brought by either side without permission of this Court; and it is further
ORDERED that the parties are to report for Jury Selection, at 89-17 Sutphin Boulevard, on October 16, 2023 at 9:30 a.m. As stated on the record on September 25, 2023, this is the FINAL DATE for jury selection.