Moreland v Huck

Moreland v Huck 2017 NY Slip Op 08985 Decided on December 22, 2017 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 22, 2017 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, DEJOSEPH, AND WINSLOW, JJ.
1305 CA 17-00326

[*1]JOANNE MORELAND, BOTH INDIVIDUALLY AND DERIVATIVELY AS A MEMBER OF PCL, LLC, PLAINTIFF-APPELLANT,

v

DAVID HUCK AND PCL, LLC, DEFENDANTS-RESPONDENTS.

SCHRÖDER, JOSEPH & ASSOCIATES, LLP, BUFFALO (JENNIFER L. FRIEDMAN OF COUNSEL), FOR PLAINTIFF-APPELLANT.

GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (MICHAEL J. WILLETT OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.

Appeal from an order of the Supreme Court, Erie County (Christopher J. Burns, J.), entered September 14, 2016. The order, inter alia, granted the motion of defendants for summary judgment dismissing the amended complaint, and denied the cross motion of plaintiff to strike the affidavits of three witnesses, which were submitted by defendants in support of their motion.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff appeals from an order that, inter alia, granted defendants' motion for summary judgment dismissing the amended complaint and denied plaintiff's cross motion to strike the affidavits of three witnesses, which were submitted by defendants in support of their motion for summary judgment.

We affirm the order for reasons stated in the decision at Supreme Court. We write only to address plaintiff's contention that the court should have granted her cross motion to strike the affidavits of the three subject witnesses because defendants failed to provide timely expert witness disclosure for those witnesses pursuant to CPLR 3101 (d) (1) (i). We reject that contention. Even assuming, arguendo, that each of the three witnesses provided expert testimony in his affidavit, we note that CPLR 3212 (b) provides in relevant part that, "[w]here an expert affidavit is submitted in support of, or opposition to, a motion for summary judgment, the court shall not decline to consider the affidavit because an expert exchange pursuant to [CPLR 3101 (d) (1) (i)] was not furnished prior to the submission of the

affidavit."

Entered: December 22, 2017

Mark W. Bennett

Clerk of the Court