| Browne v Smith |
| 2009 NY Slip Op 06393 [65 AD3d 996] |
| September 8, 2009 |
| Appellate Division, Second Department |
| Jo Ann P. Browne et al., Respondents, v Charles Smith etal., Appellants. |
—[*1] Forchelli, Curto, Crowe, Deegan, Schwartz, Mineo & Cohn, LLP, Mineola, N.Y. (DonaldJay Schwartz and Brian Isaac of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendants appeal, as limitedby their brief, from so much of an order of the Supreme Court, Kings County (Bunyan, J.), datedNovember 14, 2007, as denied that branch of their motion which was for summary judgmentdismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The defendants demonstrated their prima facie entitlement to judgment as a matter of law onthe issue of liability by establishing that the plaintiff driver's vehicle proceeded into anintersection controlled by a stop sign without yielding the right of way to an approaching vehicle(see Vehicle and Traffic Law § 1142 [a]; Mateiasevici v Daccordo, 34 AD3d 651 [2006]). The plaintiffs,however, raised a triable issue of fact with their submission of an expert affidavit (see Cox v Nunez, 23 AD3d 427,428 [2005]; Romano v 202 Corp., 305 AD2d 576, 577 [2003]). "CPLR 3101 (d) (1) (i)does not require a party to respond to a demand for expert witness information 'at any specifictime nor does it mandate that a party be precluded from proffering expert testimony merelybecause of noncompliance with the statute,' unless there is evidence of intentional or willfulfailure to disclose and a showing of prejudice by the opposing party" (Hernandez-Vega v Zwanger-PesiriRadiology Group, 39 AD3d 710, 710-711 [2007], quoting Aversa v Taubes,194 AD2d 580, 582 [1993]). Here, the Supreme Court did not improvidently exercise itsdiscretion in considering the expert materials submitted by the plaintiffs in opposition to thedefendants' summary judgment motion since there was no evidence that the failure to disclosewas intentional or willful, and there was no showing of prejudice to the defendants (seeHernandez-Vega v Zwanger-Pesiri Radiology Group, 39 AD3d at 710; Simpson vTenore & Guglielmo, 287 AD2d 613 [2001]). Moreover, the defendants had sufficient timeto respond to the plaintiffs' submissions. Spolzino, J.P., Dillon, Florio and Belen, JJ., concur.