Alston v. New York City Transit Authority

23 A.D.3d 239, 803 N.Y.S.2d 427

Opinion

Judgment, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered July 12, 2004, upon a jury verdict, in favor of defendant, unanimously affirmed, without costs.

Plaintiffs seek reversal on the ground that the trial court received the defense expert’s testimony despite late notice to plaintiffs’ counsel pursuant to CPLR 3101 (d). However, the trial court had discretion under CPLR 3101 (d) to fashion a remedy consistent with justice, and, under the present circumstances, such discretion was not improvidently exercised (see Jefferson v Temco Servs. Indus., 272 AD2d 196 [2000]; Busse v Clark Equip. Co., 182 AD2d 525, 526 [1992]). Concur—Saxe, J.P., Marlow, Nardelli, Gonzalez and Sweeny, JJ.