| Saldivar v I.J. White Corp. |
| 2007 NY Slip Op 09757 [46 AD3d 660] |
| December 11, 2007 |
| Appellate Division, Second Department |
| Valentin Saldivar et al., Appellants, v I.J. WhiteCorporation, Respondent, et al., Defendant. |
—[*1] Lewis Johs Avallone Aviles, LLP, Melville, N.Y. (Michael G. Kruzynski of counsel), forrespondent and defendant.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from ajudgment of the Supreme Court, Kings County (Johnson, J.), entered September 12, 2006, which,upon the granting of the motion of the defendant I.J. White Corporation pursuant to CPLR 4401for judgment as a matter of law made at the close of the plaintiffs' evidence, dismissed thecomplaint insofar as asserted against that defendant.
Ordered that the judgment is reversed, on the law, the facts, and in the exercise of discretion,the motion is denied, the complaint insofar as asserted against the defendant I.J. WhiteCorporation is reinstated, and the matter is remitted to the Supreme Court, Kings County, for anew trial, with costs to abide the event.
The plaintiff Valentin Saldivar (hereinafter the plaintiff) sustained injuries at his workplacewhen he fell from a cooling tower containing a spiral conveyor belt used to cool baked goodsbefore packaging. Just prior to opening arguments, the defendant I.J. White Corporation(hereinafter the defendant) moved in limine to exclude the testimony of the plaintiffs' expert onthe [*2]ground that he was unqualified to render an opinion. Withleave of court, the plaintiffs then formally served notice of their expert testimony on thedefendant pursuant to CPLR 3101 (d). The parties engaged in extensive colloquy before the courton the defendant's motion, during which the plaintiffs expressed opposition to the motion, interalia, on the ground that they were not required to formally serve a CPLR 3101 (d) notice becausethe defendant had notice of their expert's testimony through his prior affidavit submitted inopposition to the defendant's motion for summary judgment. Although the court, in effect,rejected the ground for exclusion set forth by the defendant, it nevertheless granted thedefendant's motion to the extent of limiting the testimony of the plaintiffs' expert only to mattersset forth in his prior affidavit submitted in opposition to the defendant's motion for summaryjudgment, on the ground that the plaintiffs' CPLR 3101 (d) notice was untimely. In that affidavit,however, the expert set forth the foundational facts required to establish a prima facie case instrict liability predicated on a design defect by referring to the plaintiffs' response to thedefendant's amended demand for a bill of particulars, which specified the alleged deviations fromindustry standards in the cooling tower's design (see Amatulli v Delhi Constr. Corp., 77NY2d 525, 534 [1991]; Voss v Black & Decker Mfg. Co., 59 NY2d 102, 107 [1983]; D'Auguste v Shanty Hollow Corp., 26AD3d 403, 404 [2006]; Ramirez v Sears, Roebuck & Co., 286 AD2d 428, 430[2001]).
Preliminarily, in light of the parties' oral argument before the Supreme Court as to whether,inter alia, preclusion of the testimony of the plaintiffs' expert was warranted because the plaintiffsdid not serve their CPLR 3101 (d) notice until the trial, the plaintiffs preserved for appellatereview their challenge to the trial court's preclusion ruling (see CPLR 4017; Gallegos v Elite Model Mgt. Corp., 28AD3d 50, 59 [2005]).
The trial court improvidently exercised its discretion in precluding the testimony of theplaintiffs' expert to the extent of limiting his testimony to the issues set forth in his prioraffidavit. "CPLR 3101 (d) (1) (i) does not require a party to respond to a demand for expertwitness information 'at any specific time nor does it mandate that a party be precluded fromproffering expert testimony merely because of noncompliance with the statute,' unless there isevidence of intentional or willful failure to disclose and a showing of prejudice by the opposingparty" (Aversa v Taubes, 194 AD2d 580, 582 [1993], quoting Lillis v D'Souza,174 AD2d 976 [1991]; see Gayz vKirby, 41 AD3d 782 [2007]). Here, there is no evidence that the plaintiffs' failure toformally serve a CPLR 3101 (d) notice prior to the trial was willful. Further, the defendant wasnot prejudiced by the plaintiffs' delay given that the plaintiffs had apprised the defendant of thesubject matter and substance of the testimony of their expert several months before the trialthrough service of their bill of particulars which, inter alia, alleged that the defendant's coolingtower deviated from specific industry standards, and through the affidavit submitted by theirexpert in opposition to the defendant's motion for summary judgment (see Aponte v City ofNew York, 282 AD2d 372 [2001]; cf. Durant v Shuren, 33 AD3d 843, 844 [2006]; Thomas v 14 Rollins St. Realty Corp.,25 AD3d 317, 318 [2006]).
In light of our determination, we need not reach the parties' remaining contentions.Goldstein, J.P., Fisher, Carni and McCarthy, JJ., concur.