McDermott v. Alvey, Inc.
| Decision Date | 16 November 1993 |
| Citation | 603 N.Y.S.2d 162,198 A.D.2d 95 |
| Parties | Michael McDERMOTT, Plaintiff-Appellant, v. ALVEY, INC., Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Before MURPHY, P.J., and WALLACH, KUPFERMAN and ASCH, JJ.
Order, Supreme Court, Bronx County (Howard Silver, J.), entered on or about June 2, 1993, which granted defendant Alvey, Inc.'s motion to preclude plaintiff's economist from testifying at trial unanimously modified, on the law, the facts and in the exercise of discretion to the extent of denying the motion on condition that plaintiff's attorney pay the sum of $1,500 to defendant-respondent's attorneys within thirty days after service of a copy of this decision and order with notice of entry, and otherwise affirmed, with costs. In the event the aforesaid condition is not complied with, the order appealed from is unanimously affirmed, with costs.
Plaintiff waited three years, until the eve of trial, before responding to defendant Alvey, Inc.'s demand, pursuant to CPLR 3101(d)(1)(i), for expert witness information by disclosing the identity of its economist expert. According to plaintiff, who had previously disclosed the identities of medical and engineering experts, he had retained the services of the expert economist at least one month before the scheduled trial date, but did not immediately disclose his identity to the opposing party because of an uncertainty concerning the witness's availability to testify at trial. While other similar delays in disclosure have resulted in the preclusion of expert testimony (Hudson v. Manhattan & Bronx Surface Tr. Operating Auth., 188 A.D.2d 355, 591 N.Y.S.2d 31; Corning v. Carlin, 178 A.D.2d 576, 577 N.Y.S.2d 474), we find there is no proof of intentional or willful failure to disclose, on plaintiff's part, and an absence of prejudice to the parties opposing the testimony (see, Lillis v. D'Souza, 174 A.D.2d 976, 572 N.Y.S.2d 136, lv. denied, 78 N.Y.2d 858, 575 N.Y.S.2d 454, 580 N.E.2d 1057). Under these circumstances, we find plaintiff's counsel's payment of a sum of $1,500 for its lack of diligence more appropriate than an order of preclusion (see, Aversa v. Taubes, 194 A.D.2d 580, 598 N.Y.S.2d 801).
To continue reading
Request your trial
-
Gayoso v. Am. Honda Motor Co. (In re N.Y.C. Asbestos Litig.)
...Martin v. Triborough Bridge abd Tunnel Authority, 73 A.D. 3d 481, 901 N.Y.S. 2d 193 [1st Dept. 2010] and McDermott v. Alvey, Inc., 198 A.D. 2d 95, 603 N.Y.S. 2d 162 [1st Dept. 1993]). Dr. Schwartz's December 28, 2014 report assesses the decedent's clinical history, past medical history, fam......
-
Kaprelian v. Kaprelian
...on numerous occasions to the plaintiff and the court that the valuation of the annuity would not be contested (cf., McDermott v. Alvey Inc., 198 A.D.2d 95, 603 N.Y.S.2d 162; Aversa v. Taubes, 194 A.D.2d 580, 598 N.Y.S.2d 801). Therefore, the testimony of the defendant's actuary that the pla......
-
Srica v. Am. Builtrite Inc. (In re N.Y. City Asbestos Litig.)
...Martin v. Triborough Bridge abd Tunnel Authority, 73 A.D. 3d 481, 901 N.Y.S. 2d 193 [1st Dept. 2010] and McDermott v. Alvey, Inc., 198 A.D. 2d 95, 603 N.Y.S. 2d 162 [1st Dept. 1993]). ABI was timely aware that Dr. Zhang had provided a report dated July 14, 2015, which was addressed by ABI a......
-
Fuoco v. County of Nassau
...of intentional or willful failure to disclose and no surprise or prejudice to the County (see, e.g., CPLR 3101[d]; McDermott v. Alvey, Inc., 198 A.D.2d 95, 603 N.Y.S.2d 162; Marra v. Hensonville Frozen Food Lockers, 189 A.D.2d 1004, 1005, 592 N.Y.S.2d ...