Melendez v. Pro Sports & Entertainment, Inc.

2024 NY Slip Op 34141(U)

• Court: New York Supreme Court, New York County
• Decided: November 19, 2024
• Docket: Index No. 114296/2005
• Status: Unpublished

Opinion

Melendez v Pro Sports & Entertainment, Inc. 2024 NY Slip Op 34141(U) November 19, 2024 Supreme Court, New York County Docket Number: Index No. 114296/2005 Judge: Emily Morales-Minerva Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: NEW YORK COUNTY CLERK 11/25/2024 11:59 AM INDEX NO. 114296/2005 NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 11/25/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. EMILY MORALES-MINERVA PART 42M Justice -------------------.X INDEX NO. 114296/2005 CARLOS MELENDEZ, MOTION DATE May 03, 2024 Plaintiff,

- V-

PRO SPORTS & ENTERTAINMENT, INC.,THE ROUSE DECISION & ORDER COMPANY OF NEW YORK, LLC,SOUTH STREET PRE-TRIAL MOTION IN LIMINE SEAPORT LIMITED PARTNERSHIP, APPLE INDUSTRIAL N0.01 DEVELOPMENT CORP., NEW YORK CITY ECONOMIC DEVELOPMENT CORPORATION, THE CITY OF NEW YORK

Defendant. -------------------X

APPEARANCES:

Hach & Rose, LLP, New York, NY (Evan Bane, Esq., and Adam Roth, Esq., of counsel), for plaintiff.

Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, NY (Mathew Ross, Esq., of counsel) for defendants.

HON. EMILY MORALES-MINERVA, J.S.C.:

In this labor law action, pending almost twenty years,

plaintiff filed a pre-trial motion in limine, dated May 03,

2024, seeking an order precluding the expert witnesses of

defendants from testifying beyond "the 'four corners' of their

reports" (New York State Court System Electronic Filing System

[NYSCEF] Doc. No. 94, at 1). Defendants submit opposition to

plaintiff's application, arguing, among other things, that no

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reason exists to preemptively restrict the testimony of their

experts.

All parties appeared, by counsel, for oral argument on this

pre-trial motion, which was held on November 07, 2024, at

11:00 A.M., in Part 42M, 111 Centre Street, New York, New York.

Following arguments, plaintiff rested on the supporting case law

as listed on page three of plaintiff's trial brief in support of

motion in limine, dated May 03, 2024 (id. Doc. No. 94, at 3,

para 8).

Now, upon consideration of the arguments and submissions on

this motion, the subject motion in limine is denied.

Nothing in the record suggest that defendants' expert

witnesses intend on testifying to facts or opinions outside of

their report or intends to discuss an ailment not mentioned in

their report. The cases plaintiff relies upon apparently

concern objections to expert testimony made during trial -- not

objections to testimony yet to be elicited -- as beyond the

scope or in contradiction to the expert's report (see Klempner v

Leone, 277 AD2d 287 [2nd Dept 2000] [providing that "absent a

showing of good cause," a medical expert's testimony should be

precluded if it contradicts or discusses conditions not

mentioned in the experts report]; see also Langhorne v County of

Nassau, 40 AD3d 1045 [2nd Dept 2007] [holding it was reversable

error to permit defense counsel to elicit testimony from

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defendant's expert that was both beyond the scope of his medical

report and inconsistent with the conclusions set forth in that

report]; Desert Storm Constr. Corp. v SSSS Ltd. Corp., 18 AD3d

421, 422 [2nd Dept 2005] [holding the trial court providently

exercised its discretion to preclude the defendants' expert from

testifying on a subject not included in pretrial disclosure

absent good cause shown for the absence of the pretrial

disclosure]}.

To the extent defendants rely on 1515 Summer St. Corp. v

Parikh, 13 AD3d 305 [1st Dept 2004], said case -- while holding

that the lower court properly precluded an expert from

testifying about matters not included in their disclosure

statement -- is factually blind as to when the party made the

motion. Further, the First Department in 1515 Summer St. Corp.

relied upon Matter of Richard S. (208 AD2d 750 [1st Dept 1994],

lv denied 86 NY2d 704 [1995]}, which is clearly distinguishable

from the facts presented.

In Matter of Richard, the proponent of the expert testimony

presented a list of experts to its adversary but did not

disclose therein any details as to the substance of the expert's

opinions or the grounds thereof (id. at 750-751). Finding that

said lack of disclosure impaired the other party in preparing

for the hearing, the First Department upheld the trial court's

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discretion to preclude the experts from providing any opinion

(id. at 751).

Finally, plaintiff also misplaces its reliance on the

Appellate Division, Fourth Department case Lidge v Niagra Falls

Mem. Med. Ctr. (17 AD3d 1033 [4th Dept 2005]). Unlike here, the

Lidge case involved a party's attempt to submit a new expert

disclosure statement at the eve of trial, which included

additional theories of negligence (id. at 1035). The Fourth

Department held that the trial court both properly precluded the

amendment to the initial disclosure and properly precluded the

expert from testifying beyond the original expert disclosure

(id. at 1035).

Of course, while plaintiff is unsuccessful in this pre-

trial motion, the court's holding herein prevents neither

plaintiff nor defendants from making objections at trial based

on governing rules of evidence.

Accordingly, it is

ORDERED that the plaintiff's motion in limine, dated May

03, 2024, is denied.

Date: November 19, 2024

J.S.C.

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