Teachers Insurance & Annuity Ass'n of America v. Coopers & Lybrand

183 A.D.2d 473

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 12, 1992
• Status: Published

Opinion

— Order, Supreme Court, New York County (C. Beau-champ Ciparick, J.), entered April 9, 1991, which denied defendant’s motion to preclude plaintiffs from offering any evidence at trial to controvert matters on which defendant’s former expert would have testified, and order of the same court, entered December 24, 1991, which denied defendant’s motion to renew its motion to preclude, unanimously affirmed, with costs.

We agree with the IAS court that defendant has failed to demonstrate that plaintiff acted willfully or in bad faith when it retained the accounting firm of Deloitte & Touche in 1990 to perform its regular accounting and auditing work, there being no evidence to suggest that this was done intentionally to create a conflict for Mr. Hoffman of the Deloitte firm, who had been hired by defendant as its expert in this litigation. Nor was there any showing that defendant’s trial strategies, tactics or confidences were disclosed to plaintiff or its counsel, or that defendant has been otherwise prejudiced as a result of plaintiffs hiring of the Deloitte firm. Accordingly, the drastic relief of preclusion requested by defendant, which would, in effect, prevent plaintiff from establishing its case, was properly denied. Concur — Rosenberger, J. P., Wallach, Ross, Asch and Kassal, JJ.