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eBook details

• Title: Rosanne Corning
• Author : Supreme Court of New York
• Release Date : January 23, 1991
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 55 KB

Description

DECISION & ORDER The plaintiff commenced this action to recover damages for legal malpractice in 1986, alleging that
the defendant had negligently represented her in a matrimonial action. In September 1986 the defendant served a demand for
expert information pursuant to CPLR 3101(d)(1). The demand was a "continuing demand, requiring the disclosure of information
whenever it is received". The plaintiff never responded to the demand. The trial began in August 1989, nearly three years
later. When the plaintiff called her first witness, an expert, the defendant moved to preclude his testimony on the ground
that the plaintiff had failed to disclose the existence of her expert. The trial court granted the defendant's motion. CPLR 3101(d)(1)(i) requires a party to disclose his or her expert witness and certain expert information prior to trial when
served with a proper demand. The statute also provides, however, that "where a party for good cause shown retains an expert
an insufficient period of time before the commencement of trial to give approximate notice thereof, the party shall not thereupon
be precluded from introducing the expert's testimony at the trial solely on grounds of noncompliance with this paragraph"
(CPLR 3101[d][1][i] [emphasis added]). In this case, the plaintiff failed to show good cause why she did not retain an expert
until the very eve of trial and then failed to disclose his existence until after opening statements had been made. Under
such circumstances, the trial court's preclusion order was proper (see, Simpson v Bellew, 161 A.D.2d 693, 698; Zarrelli v
Nathan Littauer Hosp., A.D.2d [3d Dept., Oct. 31, 1991]). To the extent that the decision of the Appellate Division,
Fourth Department, in Lillis v D'Souza, ( A.D.2d [4th Dept., June 7, 1991]) may be read to be contrary, we decline to
follow it.

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