Opinion
2002-02016
Argued June 10, 2002
August 12, 2002
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), dated February 25, 2002, which denied his motion to vacate an order of the same court dated February 4, 2002, precluding him from presenting the testimony of an expert witness on security procedures upon his failure to comply with CPLR 3101(d).
Doniger Engstrand, Islandia, N.Y. (Joseph V. Savino of counsel), for appellant.
Vincent D. McNamara, East Norwich, N.Y. (Anthony Marino of counsel), for respondents Long Island University, C.W. Post College, and C.W. Post Center at Long Island University.
Before: FRED T. SANTUCCI, J.P., SONDRA MILLER, GLORIA GOLDSTEIN, SANDRA L. TOWNES, JJ.
ORDERED that the order is reversed, with costs, the motion is granted, the order dated February 4, 2002, is vacated, and the defendants are directed to accept the plaintiff's expert witness response pursuant to CPLR 3101(d).
This court has held that preclusion 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" (Shopsin v. Siben Siben, 289 A.D.2d 220, 221; see Cutsogeorge v. Hertz Corp., 264 A.D.2d 752). In the instant case, there was no showing of an intentional or willful failure to disclose and no showing of prejudice. The plaintiff demonstrated good cause for failing to retain his expert witness earlier.
The remaining contentions of the respondents Long Island University, C.W. Post College, and C.W. Post Center at Long Island University are without merit (see Hegler v. Loews Roosevelt Field Cinemas, 280 A.D.2d 645; Marshall v. 130 N. Bedford Rd. Mount Kisco Corp., 277 A.D.2d 432; Krygier v. Airweld, Inc., 176 A.D.2d 700, 701).
SANTUCCI, J.P., S. MILLER, GOLDSTEIN and TOWNES, JJ., concur.