| Nathel v Nathel |
| 2008 NY Slip Op 08016 [55 AD3d 434] |
| October 23, 2008 |
| Appellate Division, First Department |
| Ann Marie Nathel, Appellant, v Sheldon Nathel,Respondent. |
—[*1] Cohen Goldstein Silpe, LLP, New York (Jeffrey R. Cohen of counsel), forrespondent.
Order, Supreme Court, New York County (Marian Lewis, Special Ref.), entered April 30(dated March 27), 2008, which to the extent appealed from, limited the scope and duration ofplaintiff's deposition of defendant, unanimously affirmed, without costs. Appeal from order,same court and Referee, entered April 30 (dated April 28), 2008, to the extent it denied plaintiff'sapplication to preclude defendant's expert from relying on a document allegedly not produced,unanimously dismissed, without costs; the aforesaid order insofar as it precluded plaintiff fromintroducing at trial a real estate appraisal prepared or to be prepared pursuant to an earlier courtorder, unanimously modified, on the law and the facts, plaintiff permitted to introduce theappraisal provided it is served within a time to be set by the court following remand, andotherwise affirmed, without costs.
In light of plaintiff's two-year delay in seeking to take defendant's deposition and theimminence of trial, the referee did not improvidently exercise her discretion in limiting the scopeand duration of defendant's deposition (CPLR 3103 [a]; Kingsgate Assoc. v Advest, Inc.,208 AD2d 356 [1994]).
The referee properly exercised her discretion in denying plaintiff's application to precludedefendant from introducing two expert reports that were served after the deadline set by thecourt. Preclusion of expert reports on the ground of failure to comply with the rules governingexchange of reports is generally unwarranted, absent a showing that the noncompliance waswillful or the party seeking preclusion was prejudiced by the lateness of the exchange (CPLR3101 [d] [1] [i]; 22 NYCRR 202.16 [g] [2]; McDermott v Alvey, Inc., 198 AD2d 95[1993]). Here, defendant believed that the deadline for exchange of all expert reports had beenextended one week. Even assuming defendant was mistaken, plaintiff did not show any prejudiceresulting from the claimed one-week delay in service of the two expert reports.
However, we find that the referee improvidently exercised her discretion in precludingplaintiff from using a real estate appraisal of the marital residence prepared or to be preparedpursuant to a court-ordered stipulation. Such a stipulation generally will be enforced unless theparties' agreement is shown [*2]to have been the product of fraud,overreaching or duress (Perito v Perito, 135 AD2d 623 [1987]). Since no date was everset for completion of the appraisal, there was no basis for precluding it on the ground of lateness,especially since preclusion would result in a lack of evidence on a key issue to be determined attrial. Upon remand, the trial court should set a date for the appraisal to be completed andfurnished to the parties in advance of the expert's testimony.
The referee's denial of plaintiff's request to strike part of defendant's expert report concerningbusiness valuation is not reviewable, since she indicated that the issue would be revisited at trial,and the record is insufficient for this Court to make a determination on the merits (seeBeharry v Guzman, 33 AD3d 741, 742 [2006]). Concur—Lippman, P.J., Saxe,Friedman, Sweeny and Acosta, JJ.