Jacobs v. Nussbaum

100 A.D.3d 702, 953 N.Y.S.2d 875

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 14, 2012
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the defendants Milton Nussbaum and Sarah Nussbaum appeal, by-permission, from an order of the Supreme Court, Kings County (Schack, J.), dated November 22, 2011, which granted the plaintiffs application for additional time to retain expert witnesses and provide expert witness disclosure pursuant to CPLR 3101 (d) and, thereupon, adjourned their motion for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed, with costs.

“[A] party’s failure to disclose its experts pursuant to CPLR 3101 (d) (1) (i) prior to the filing of a note of issue and certificate of readiness does not divest a court of the discretion to consider an affirmation or affidavit submitted by that party’s experts in the context of a timely motion for summary judgment” (Rivers v Birnbaum, 102 AD3d 26, 31 [2012]). Here, considering all of the relevant circumstances, the Supreme Court providently exercised its discretion in granting the plaintiffs application for additional time to retain expert witnesses and provide expert witness disclosure pursuant to CPLR 3101 (d) (id. at 42-43; Hayden v Gordon, 91 AD3d 819, 820 [2012]; Ocampo v Pagan, 68 AD3d 1077, 1077-1078 [2009]).

The appellants’ remaining contentions are without merit. Eng, PJ., Skelos, Lott and Cohen, JJ., concur.