Tan Holding Corp. v Bahra Group, Inc.

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Tan Holding Corp. v Bahra Group, Inc. 2007 NY Slip Op 02480 [38 AD3d 390] March 22, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 9, 2007

Tan Holding Corp., Doing Business as Tan Realty Holding, Appellant,
v
Bahra Group, Inc., et al., Respondents.

—[*1] Wasserman Grubin & Rogers, LLP, New York (Michael T. Rogers of counsel), for appellant.

Rivelis, Pawa & Blum, LLP, New York (Howard Blum of counsel), for respondents.

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered November 17, 2006, which, to the extent appealed from, denied the motion of plaintiff insofar as it sought leave to call Tony Canale, P.E. as an expert witness and granted the cross motion of defendants to the extent of precluding plaintiff from calling Canale, unanimously reversed, on the law and the facts, without costs, plaintiff's motion granted insofar as to permit it to call Canale as an expert witness, and the cross motion denied.

After learning of his liability expert's health problems, plaintiff's attorney served notice of a new expert, Tony Canale, P.E., of Mueser Rutledge, which defendants rejected as untimely. Subsequently, plaintiff, after retaining new counsel, moved for permission to permit Canale to testify as an expert on its behalf. The motion should have been granted. Plaintiff's failure to timely comply with the notice requirements of CPLR 3101 (d) (1) was neither willful nor prejudicial (see Colome v Grand Concourse 2075, 302 AD2d 251 [2003]). Concur—Tom, J.P., Andrias, Sullivan, Williams and Gonzalez, JJ.

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