| Jessmer v Martin |
| 2007 NY Slip Op 09846 [46 AD3d 1059] |
| December 13, 2007 |
| Appellate Division, Third Department |
| Eleanor Jessmer et al., Respondents, v Ryne R. Martin et al.,Appellants. |
—[*1] Fischer, Bessette, Muldowney & Hunter, L.L.P., Malone (Richard F. Hunter of counsel), forDaily Courier-Observer and another, appellants. Poissant, Nichols, Grue & Vanier, Malone (Kevin F. Nichols of counsel), forrespondents.
Rose, J. Appeals from an order and an amended order of the Supreme Court (Demarest, J.),entered February 8, 2007 and February 14, 2007 in St. Lawrence County, which denieddefendants' motions to preclude certain evidence.
Plaintiffs commenced this action to recover damages for the personal injuries sustained byplaintiff Eleanor Jessmer in a motor vehicle accident. Approximately one month before thescheduled trial date and just as the testimony of Jessmer's treating physician was about to bevideotaped for trial, plaintiffs served defendants with a previously undisclosed medical report.They also served a supplemental bill of particulars. In response, defendants rejected thesupplemental bill and moved for an order precluding the deposition testimony on the groundsthat plaintiffs had failed to promptly disclose the medical report in violation of 22 NYCRR202.17 (g) and improperly alleged new injuries in the supplemental bill in violation of CPLR3043 (b). After postponing the trial, Supreme Court found that plaintiffs' disclosures had beenuntimely but, in view of the postponement, denied defendants' motions. The court, however, didrequire plaintiffs to reimburse the costs incurred by defendants if an additional independent [*2]medical examination or further deposition of Jessmer's treatingphysician became necessary. Defendants appeal.
Inasmuch as a trial court has broad discretion in supervising the discovery process, itsdeterminations will not be disturbed absent a clear abuse of that discretion (see Davis v EddyCohoes Rehabilitation Ctr., 307 AD2d 637, 637 [2003]; United Airlines v Ogden N.Y.Servs., 305 AD2d 239, 240 [2003]; see also CPLR 2004, 3126). Since the trial wasadjourned without objection by defendants and they were afforded ample opportunity to conductfurther discovery at plaintiffs' expense, we cannot agree that Supreme Court abused its discretionin deciding to excuse the untimeliness of plaintiffs' disclosures. Clearly, the regulations do notcompel the court to preclude the medical report where, as in this case, there was no prejudice todefendants and "an order to the contrary [was] made" (22 NYCRR 202.17 [h]). Similarly, as forthe supplemental bill, if it alleged new injuries as defendants assert, then its untimeliness wasalso excusable given the postponement, the lack of any prejudice and the public policy favoringthe resolution of cases on their merits (see Bossone v General Elec. Co., 185 AD2d 504,505 [1992]; Trivino v Jamesway Corp., 148 AD2d 851, 854 [1989]; Caggiano vRoss, 130 AD2d 538, 539 [1987]; see also CPLR 3025 [b]).
Crew III, J.P., Spain, Carpinello and Lahtinen, JJ., concur. Ordered that the order andamended order are affirmed, with costs.