| SCG Architects v Smith, Buss & Jacobs, LLP |
| 2012 NY Slip Op 07288 [100 AD3d 619] |
| November 7, 2012 |
| Appellate Division, Second Department |
| SCG Architects et al., Appellants, v Smith, Buss & Jacobs,LLP, Respondent. |
—[*1] Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, N.Y. (Stephen D. Straus andGerard Benvenuto of counsel), for respondent.
In an action to recover damages for legal malpractice, the plaintiffs appeal from a judgmentof the Supreme Court, Westchester County (Bellantoni, J.), entered June 9, 2011, which, upon ajury verdict, is in favor of the defendant and against them dismissing the complaint.
Ordered that the judgment is affirmed, with costs.
The plaintiffs commenced this action alleging that the defendant law firm committed legalmalpractice in connection with its preparation of an offering plan for a condominium. After trial,the jury returned a verdict in favor of the defendant, finding that it did not fail to use the degreeof care customarily exercised by similar attorneys in the legal community in connection with thelegal services provided to the plaintiffs. The plaintiffs appeal.
The Supreme Court providently exercised its discretion in denying the plaintiffs' motion topreclude the defendant's expert from testifying due to inadequate expert disclosure pursuant toCPLR 3101 (d). CPLR 3101 (d) (1) (i) does not mandate that a party be precluded fromproffering expert testimony merely because of noncompliance, " 'unless there is evidence ofintentional or willful failure to disclose and a showing of prejudice by the opposing party' " (Browne v Smith, 65 AD3d 996,997 [2009], quoting Hernandez-Vega vZwanger-Pesiri Radiology Group, 39 AD3d 710, 711 [2007]; see Aversa vTaubes, 194 AD2d 580, 582 [1993]). Here, the defendant's expert disclosure, although notdetailed, was adequate under the circumstances, and the plaintiffs failed to show that they wereprejudiced thereby (see Flores v New York Hosp.-Cornell Med. Ctr., 294 AD2d 263, 264[2002]).
The jury's finding was based on a fair interpretation of the evidence, and thus was not againstthe weight of the evidence (see Nicastro v Park, 113 AD2d 129, 134-135 [1985]).
The plaintiffs' remaining contentions concerning the jury charge and certain comments madeby the trial court are unpreserved for appellate review, and we decline to address them in theinterest of justice (see CPLR 5501 [a] [4]; Schlecter v Abbondadello, 5 AD3d 582, 583 [2004]). Rivera, J.P.,Angiolillo, Chambers and Roman, JJ., concur.