Inwood Security Alarm, Inc. v. 606 Restaurant, Inc.

35 A.D.3d 194, 826 N.Y.S.2d 214

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 7, 2006
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Jane S. Solomon, J.), entered August 10, 2004, upon a jury verdict, in favor of defendant 606 Restaurant, Inc., unanimously affirmed, without costs.

The issue of the propriety of the trial court’s ruling precluding plaintiff’s expert from testifying is not preserved for our review, no objection having been made to the ruling at trial (see e.g. Scherer v Equitable Life Assur. Socy. of U.S., 299 AD2d 301 [2002], lv denied 99 NY2d 609 [2003]). Were we to consider plaintiffs argument, we would find it without merit. Plaintiffs CPLR 3101 (d) notice did not set forth the nature and relevance of proposed expert testimony and plaintiffs offer of proof during trial, disclosing a new theory of liability, went well beyond what defendants might reasonably have anticipated from the notice (see e.g. Lissak v Cerabona, 10 AD3d 308 [2004]). We have considered plaintiffs remaining contentions and find them unavailing. Concur—Tom, J.P, Marlow, Williams, Catterson and Malone, JJ.