| Burbige v Siben & Ferber |
| 2014 NY Slip Op 01426 [115 AD3d 632] |
| March 5, 2014 |
| Appellate Division, Second Department |
| Raymond Burbige, Appellant, v Siben & Ferber etal., Respondents. |
—[*1] Jakubowski, Robertson, Maffei, Goldsmith & Tartaglia, LLP (Sweetbaum &Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum and Joel A. Sweetbaum], ofcounsel), for respondents.
In an action to recover damages for legal malpractice, the plaintiff appeals from anorder of the Supreme Court, Nassau County (Marber, J.), entered August 1, 2012, whichgranted the defendants' motion to preclude his expert from testifying at a retrial anddenied his cross motion pursuant to CPLR 3126 to impose a sanction upon thedefendants for the spoliation of evidence.
Ordered that the order is modified, on the facts and in the exercise of discretion, bydeleting the provision thereof granting the defendants' motion to preclude the plaintiff'sexpert from testifying at the retrial and substituting therefor a provision denying thatmotion; as so modified, the order is affirmed, without costs or disbursements.
In August 1989, the plaintiff was injured when a metal railing on a ladder he wasdescending broke off, causing him to fall. In June 1991, he retained the defendant Siben& Ferber, a partnership consisting of Gary L. Siben and Steven B. Ferber (hereinafterS&F), to represent him in a products liability lawsuit against the ladder manufacturer.The action was commenced in August 1991. After issue was joined in October 1991, themanufacturer filed for bankruptcy. The products liability action remained dormant untilMarch 2004, when the defendant Leonard G. Kapsalis, then an associate at S&F,contacted the plaintiff to sign authorizations to verify his responses to interrogatories.One of the responses indicated that the plaintiff's employer had retained the subjectladder after his accident. However, while S&F's legal file contained photographs of theladder, the location of the ladder was unknown. In 2007, the plaintiff commenced thislegal malpractice action alleging, inter alia, that the defendants were negligent in failingto diligently prosecute the products liability action. The plaintiff now appeals from anorder of the Supreme Court which granted the defendants' motion to preclude his expertfrom testifying at a retrial and which denied his cross motion pursuant to CPLR 3126 toimpose a sanction upon the defendants for the spoliation of evidence.
CPLR 3101 (d) (1) (i) "does not require a party to respond to a demand for expertwitness information at any specific time nor does it mandate that a party be precludedfrom proffering expert testimony merely because of noncompliance with the statute,unless there is evidence of intentional or willful failure to disclose and a showing ofprejudice by the opposing [*2]party" (Cutsogeorge vHertz Corp., 264 AD2d 752, 753-754 [1999], quoting Aversa v Taubes, 194AD2d 580, 582 [1993], quoting Lillis v D'Souza, 174 AD2d 976, 976 [1991][internal quotation marks omitted]; see Barchella Contr. Co., Inc. v Cassone, 88 AD3d 832,832 [2011]; Saldivar v I.J.White Corp., 46 AD3d 660 [2007]; Fava v City of New York, 5 AD3d 724, 724-725 [2004]).Here, the record does not support a conclusion that the plaintiff's delay in retaining hisexpert or in serving his expert information was intentional or willful. Furthermore, anypotential prejudice to the defendants was ameliorated by a two-month adjournment of theretrial agreed to by the parties (see Shopsin v Siben & Siben, 289 AD2d 220, 221[2001]). Accordingly, the Supreme Court improvidently exercised its discretion ingranting the defendants' motion to preclude the plaintiff's expert from testifying at theretrial (see Johnson vGreenberg, 35 AD3d 380 [2006]; Dailey v Keith, 306 AD2d 815[2003], affd 1 NY3d 586 [2004]).
Contrary to the plaintiff's contention, the Supreme Court properly denied his crossmotion pursuant to CPLR 3126 to impose a sanction upon the defendants for thespoliation of evidence, as there is no evidence that the defendants were responsible forthe loss or destruction of the subject ladder (see Gotto v Eusebe-Carter, 69 AD3d 566, 567 [2010]).Dillon, J.P., Balkin, Chambers and Cohen, JJ., concur. [Prior Case History: 2012 NYSlip Op 32086(U).]