| Barchella Contr. Co., Inc. v Cassone |
| 2011 NY Slip Op 07387 [88 AD3d 832] |
| October 18, 2011 |
| Appellate Division, Second Department |
| Barchella Contracting Co., Inc., Respondent, v Mary LouCassone, Appellant. |
—[*1] Piscionere & Nemarow, P.C., Rye, N.Y. (Anthony G. Piscionere of counsel), forrespondent.
In an action to recover damages for breach of contract and to recover in quantum meruit forservices rendered, the defendant appeals from a judgment of the Supreme Court, WestchesterCounty (Wood, J.), dated July 7, 2010, which, upon, inter alia, the granting of the plaintiff'smotion to preclude the defendant from offering expert testimony at trial, and upon a jury verdictawarding the plaintiff the principal sums of $133,333 for breach of contract and $350,000 inquantum meruit for services rendered, is in favor of the plaintiff and against the defendant in theprincipal sum of $483,333.
Ordered that the judgment is reversed, on the facts and in the exercise of discretion, withcosts, the plaintiff's motion to preclude the defendant from offering expert testimony at trial isdenied, and the matter is remitted to the Supreme Court, Westchester County, for a new trial.
Preclusion for failure to comply with CPLR 3101 (d) is improper " 'unless there is evidenceof intentional or willful failure to disclose and a showing of prejudice' " (Johnson v Greenberg, 35 AD3d380, 380 [2006], quoting Shopsin v Siben & Siben, 289 AD2d 220, 221 [2001][internal quotation marks omitted]). Here, while there was evidence that the defendant's belateddisclosure of her expert information in response to the plaintiff's demand therefor wasintentional, any potential prejudice to the plaintiff was ameliorated by the more than six monthsthat passed between the defendant's disclosure of her expert information and the commencementof the trial (see Gayz v Kirby, 41AD3d 782 [2007]). Accordingly, the Supreme Court improvidently exercised its discretionin granting the plaintiff's motion to preclude the defendant from offering expert testimony at trial(id.; see Johnson vGreenberg, 35 AD3d 380 [2006]; Dailey v Keith, 306 AD2d 815 [2003],affd 1 NY3d 586 [2004]).
Since the defendant was prejudiced by the preclusion, the matter must be remitted to theSupreme Court, Westchester County, for a new trial.
The defendant's remaining contentions are without merit. Dillon, J.P., Belen, Roman andMiller, JJ., concur.