| Mary Imogene Bassett Hosp. v Cannon Design, Inc. |
| 2012 NY Slip Op 05697 [97 AD3d 1030] |
| July 19, 2012 |
| Appellate Division, Third Department |
| Mary Imogene Bassett Hospital, Doing Business as BassettHealthcare, Appellant-Respondent, v Cannon Design, Inc.,Respondent-Appellant. |
—[*1] Sheats & Associates, PC, Brewerton (Edward J. Sheats Jr. of counsel), forrespondent-appellant.
Peters, P.J. Cross appeals from an order of the Supreme Court (Dowd, J.), entered December8, 2011 in Otsego County, which, among other things, partially denied plaintiff's motion to,among other things, compel discovery.
This appeal is the latest arising out of a protracted discovery dispute between the parties (see Mary Imogene Bassett Hosp. v CannonDesign, Inc., 84 AD3d 1543 [2011]; 84 AD3d 1524 [2011]; 66 AD3d 1286 [2009]).Briefly stated, in 2002, defendant contracted with plaintiff to design an upgrade to one ofplaintiff's hospital buildings in the Village of Cooperstown, Otsego County. A purpose of theupgrade was to improve the ability of the building to withstand a seismic catastrophe such as anearthquake or wind event. The contract provided for two phases of design and completion. Phaseone included the construction of a fifth floor of the inpatient building and a sixth floor to serve asa mechanical suite, together with an expansion of the south terrace. Phase two was to involveextensive interior renovations and upgrades to the balance of the inpatient building. Defendantcompleted phase one, but plaintiff canceled the contract prior to the commencement ofconstruction under phase two.[*2]
In 2007, plaintiff commenced the instant action forprofessional malpractice and breach of contract alleging, among other things, that defendantfailed to conform to the applicable standard of care in designing and upgrading the building by,among other things, failing to make the inpatient building of the hospital resistant to a seismicevent. After years of ongoing discovery, the parties consented to Supreme Court's amendedscheduling order, which set a deadline for the completion of all disclosure of August 31, 2011,with the exception of plaintiff's supplemental expert disclosure, which was to be served no laterthan September 30, 2011. On August 31, 2011, defendant served partial expert disclosurerelating to defendant's experts' anticipated trial testimony on the issues of liability anddamages.[FN1]Plaintiff served a supplement to its second amended set of answers and objections to defendant'sinterrogatories on September 6, 2011, beyond the court-ordered deadline. Plaintiff thereaftermoved to preclude the testimony of defendant's experts at trial or, in the alternative, toconditionally grant the motion unless defendant provided full and complete expert disclosurepursuant to CPLR 3101 (d) (1) (i). Defendant cross-moved for similar relief with regard toplaintiff's experts based on its alleged failure to provide expert disclosure in compliance withCPLR 3101 (d) (1) (i), and further sought an order precluding service of plaintiff's supplement toits second amended set of answers and objections. Supreme Court partially granted plaintiff'smotion to the extent that it sought supplemental disclosure of defendant's experts' anticipatedtestimony on the standard of care and requirements of the New York Building Code and partiallygranted defendant's cross motion to the extent that it sought the production of plaintiff's experts'curriculum vitae. These cross appeals ensued.
We find no basis to disturb Supreme Court's findings regarding the adequacy of the parties'respective expert disclosure statements. It is axiomatic that "Supreme Court is vested with broaddiscretion in addressing expert disclosure issues" (Gross v Sandow, 5 AD3d 901, 902 [2004], lv dismissed anddenied 3 NY3d 735 [2004]; seeMcColgan v Brewer, 84 AD3d 1573, 1576 [2011]; Mead v Dr. Rajadhyax' Dental Group, 34 AD3d 1139, 1140[2006]). Here, the court found that plaintiff's disclosure failed to adequately set forth its experts'educational background and experience and that defendant's expert disclosure was deficient inthat it failed to disclose its experts' anticipated testimony regarding the applicable standards ofcare and Building Code requirements, and accordingly ordered supplemental disclosure to thateffect.[FN2]Contrary to the parties' competing contentions, under the particular circumstances of this case,the expert disclosure statements otherwise sufficiently disclose the subject matter on which theexperts intend to testify, the substance of the facts and opinions on which they are expected totestify and a summary of the grounds for their opinions (see CPLR 3101 [d] [1] [i];see e.g. Cocca v Conway, 283 AD2d 787, 788 [2001], lv denied 96 NY2d 721[2001]). Notably, there is no requirement that the expert set forth the specific facts and opinionsupon which he or she is [*3]expected to testify, but rather onlythe substance of those facts and opinions (see Barrowman v Niagara Mohawk PowerCorp., 252 AD2d 946, 946-947 [1998], lv denied 92 NY2d 817 [1998]; Foley vAmerican Ind. Paper Mills Supply Co., 222 AD2d 401, 402 [1995]; Krygier v Airweld,Inc., 176 AD2d 700, 701 [1991]; Renucci v Mercy Hosp., 124 AD2d 796, 797[1986]). Finding no abuse of Supreme Court's broad discretion, we decline to disturb itsdetermination on this issue.
Nor did Supreme Court err in denying that branch of plaintiff's motion which sought tocompel defendant to produce "all underlying design and re-design drawings, data, specificationsand related documents and cost estimates" upon which defendant's experts will rely at trial. Inresponse to plaintiff's demands, defendant produced one seismic retrofit design document forphase two that depicts the construction of a portion of the fourth steel plate shear and, inopposition to plaintiff's motion, submitted the affidavit of defense counsel affirming that it "haspreviously provided any and all documentation in its possession and/or control relating to thisproject" and is not "in possession or control of any documentation responsive to plaintiff'sdemand." Simply stated, the record is devoid of any evidence that defendant has access to or iswithholding any of the requested documents, and a party cannot be compelled to producedocuments that do not exist (see Matterof Scaccia, 66 AD3d 1247, 1249-1250 [2009]; Moak v Raynor, 28 AD3d 900, 904 [2006]; Corriel vVolkswagen of Am., 127 AD2d 729, 731 [1987]).
Finally, we are unpersuaded that Supreme Court abused its discretion in failing to precludeservice of plaintiff's supplemental answer to interrogatories. Where a party fails to comply with adiscovery order, CPLR 3126 authorizes the court to fashion an appropriate remedy, the natureand degree of which are matters entrusted to the court's sound discretion, and its determinationwill not be disturbed on appeal absent a clear abuse of that court's discretion (see Sugar Foods De Mexico v ScientificScents, LLC, 88 AD3d 1194, 1196 [2011]; Pangea Farm, Inc. v Sack, 51 AD3d 1352, 1354 [2008]; Myers v Community Gen. Hosp. ofSullivan County, 51 AD3d 1359, 1360 [2008]). Here, defendant has failed to establishthat plaintiff's late submission, which occurred less than seven days after the court-ordereddeadline, was a result of any bad faith or willful noncompliance. Absent such a showing or anyindication of prejudice inuring to defendant as a result of the brief delay, we are unable toconclude that Supreme Court abused its discretion in denying defendant's motion in this regard(see Corinno Civetta Constr. Corp. v City of New York, 67 NY2d 297, 319 [1986];Pangea Farm, Inc. v Sack, 51 AD3d at 1354; Fraracci v Lasouska, 283 AD2d735, 736 [2001]; Nabozny v Cappelletti, 267 AD2d 623, 625 [1999]).
Spain, Malone Jr., Kavanagh and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Although a revised schedulingorder required defendant to serve expert disclosure on or before August 15, 2011, plaintiffgranted defendant an extension to serve its expert disclosure.
Footnote 2: Given that Supreme Courtordered supplemental disclosure of plaintiff's experts' curriculum vitae, defendant's continuingassertion that it has not been adequately apprised of those experts' qualifications, as required byCPLR 3101 (d) (1) (i), is without merit.