Hudson v. Manhattan & Bronx Surface Transit Operating Authority

188 A.D.2d 355

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 10, 1992
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Ira Gammerman, J., and a jury), entered February 25, 1991, in favor of plaintiff and against defendants, unanimously modified on the law, without costs, to vacate the award of interest on damages, and the matter remanded for a recomputation of interest on damages in accordance with Milbrandt v Green Refractories Co. (79 NY2d 26).

We agree with the IAS Court that the failure of defendants Manhattan and Bronx Surface Transit Operating Authority and Vasquez to retain an expert medical witness until the eve of trial was the result of their failure to prepare for trial, and not a response to plaintiff’s disclosure pursuant to CPLR 3101. Under these circumstances, where defendants did not establish "good cause” for failing to identify the expert and provide disclosure as mandated by CPLR 3101 (d) (1) (i), it cannot be said that the trial court’s decision to preclude defendants’ expert testimony was an abuse of discretion.

Under the facts of this case, defendants could not establish that a charge on successive tortfeasors was required in the absence of expert testimony.

We have reviewed the remaining contentions and find them to be without merit. We remand on the limited ground that the court erred in awarding prejudgment interest, as plaintiff concedes. Concur — Murphy, P. J., Carro, Rosenberger and Ellerin, JJ. [See, 150 Mise 2d 283.]