Marchione v. Greenky

Appellate Division of the Supreme Court of New York

Marchione v. Greenky

5 A.D.3d 1044, 773 N.Y.S.2d 657, 2004 N.Y. App. Div. LEXIS 3206

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 19, 2004

StatusPublished

Cited by5 cases

This text of 5 A.D.3d 1044 (Marchione v. Greenky) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Marchione v. Greenky, 5 A.D.3d 1044, 773 N.Y.S.2d 657, 2004 N.Y. App. Div. LEXIS 3206 (N.Y. Ct. App. 2004).

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Opinion

Appeal from an order of the Supreme Court, Onondaga County (John V. Centra, J.), entered July 2, 2003. The order denied defendants’ motion to preclude plaintiff from offering expert witness testimony.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: We reject the contention of defendants that Supreme Court erred in denying their motion to preclude plaintiff from offering expert witness testimony at the trial of this medical malpractice action. “[P]reclusion for failure to comply with CPLR 3101 (d) is improper ‘unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party’ ” (Young v Long Is. Univ., 297 AD2d 320, 320 [2002], quoting Shopsin v Siben & Siben, 289 AD2d 220, 221 [2001]; see St. Hilaire v White, 305 AD2d 209, 210 [2003]; Silverberg v Community Gen. Hosp. of Sullivan County, 290 AD2d 788, 788-789 [2002]; Peck v Tired Iron Transp., 209 AD2d 979 [1994]). Here, there is no evidence of a willful or intentional failure to disclose by plaintiff, nor did defendants show that they were prejudiced by plaintiffs delay in complying with CPLR 3101 (d). Present—Green, J.P., Pine, Scudder, Gorski and Hayes, JJ.

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Appeal from an order of the Supreme Court, Onondaga County (John V. Centra, J.), entered July 2, 2003. The order denied defendants’ motion to preclude plaintiff from offering expert witness testimony.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: We reject the contention of defendants that Supreme Court erred in denying their motion to preclude plaintiff from offering expert witness testimony at the trial of this medical malpractice action. “[P]reclusion for failure to comply with CPLR 3101 (d) is improper ‘unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party’ ” (Young v Long Is. Univ., 297 AD2d 320, 320 [2002], quoting Shopsin v Siben & Siben, 289 AD2d 220, 221 [2001]; see St. Hilaire v White, 305 AD2d 209, 210 [2003]; Silverberg v Community Gen. Hosp. of Sullivan County, 290 AD2d 788, 788-789 [2002]; Peck v Tired Iron Transp., 209 AD2d 979 [1994]). Here, there is no evidence of a willful or intentional failure to disclose by plaintiff, nor did defendants show that they were prejudiced by plaintiffs delay in complying with CPLR 3101 (d). Present—Green, J.P., Pine, Scudder, Gorski and Hayes, JJ.

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Bluebook (online)

5 A.D.3d 1044, 773 N.Y.S.2d 657, 2004 N.Y. App. Div. LEXIS 3206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marchione-v-greenky-nyappdiv-2004.

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