Lesser v. Lacher

Appellate Division of the Supreme Court of New York

Lesser v. Lacher

203 A.D.2d 181, 612 N.Y.S.2d 851

Appellate Division of the Supreme Court of the State of New York·Decided April 26, 1994·Published·Cited by 5 cases

Opinion

—Order and judgment (one paper), Supreme Court, New York County (Martin Evans, J.), entered June 16, 1993, which granted plaintiff’s motion to confirm a Referee’s report, denied defendants’ cross motion to set aside the report, and awarded plaintiff a total amount of $100,704.84, with related relief, unanimously affirmed, with costs.

Whether to preclude expert testimony as a sanction for a failure to identify a prospective expert witness or provide the substance of his or her testimony pursuant to CPLR 3101 (d) (1) (i) is a matter best left to the trial court’s discretion (see, Vigilant Ins. Co. v Barnes, 199 AD2d 257), and, under the circumstances of this case, the determination not to preclude was proper (see, Simpson v Bellew, 161 AD2d 693, 698, lv denied 77 NY2d 808). The record provides no compelling reason not to defer to the Referee as arbiter of fact and credibility (see, Zuckerman v Altman, 200 AD2d 520).

We have considered the defendants’ remaining arguments, [182] and find them to be without merit. Concur — Murphy, P. J., Sullivan, Carro and Asch, JJ.

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—Order and judgment (one paper), Supreme Court, New York County (Martin Evans, J.), entered June 16, 1993, which granted plaintiff’s motion to confirm a Referee’s report, denied defendants’ cross motion to set aside the report, and awarded plaintiff a total amount of $100,704.84, with related relief, unanimously affirmed, with costs.

Whether to preclude expert testimony as a sanction for a failure to identify a prospective expert witness or provide the substance of his or her testimony pursuant to CPLR 3101 (d) (1) (i) is a matter best left to the trial court’s discretion (see, Vigilant Ins. Co. v Barnes, 199 AD2d 257), and, under the circumstances of this case, the determination not to preclude was proper (see, Simpson v Bellew, 161 AD2d 693, 698, lv denied 77 NY2d 808). The record provides no compelling reason not to defer to the Referee as arbiter of fact and credibility (see, Zuckerman v Altman, 200 AD2d 520).

We have considered the defendants’ remaining arguments, [182] and find them to be without merit. Concur — Murphy, P. J., Sullivan, Carro and Asch, JJ.

Lesser v. Lacher, 203 A.D.2d 181, 612 N.Y.S.2d 851 (N.Y. Ct. App. 1994).

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Opinion

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