Morocho v Robles

[*1] Morocho v Robles 2005 NY Slip Op 51204(U) Decided on July 13, 2005 Supreme Court, Westchester County Jamieson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 13, 2005
Supreme Court, Westchester County

Juan Morocho, Plaintiff,

against

George F. Robles, Defendant.



20736/02



Michael Joseph, Esq.

Attorneys for Plaintiff

184 Martine Avenue

White Plains, New York 10601

Law Offices of Mary Bjork

Attorneys for Defendant

3 Executive Blvd., Third Floor

Yonkers, New York 10701

Linda S. Jamieson, J.

In this action for personal injuries suffered in a motor vehicle accident, Plaintiff, Juan Morocho ("Morocho") moves for summary judgment. Defendant, George Robles ("Robles") concedes the issue of liability, and thus, the motion for summary judgment is granted on that issue.

The real question presented here is whether the affidavit of Defendant's expert witness, Dr. Robert Tantleff, M.D. ("expert"), [*2]should be precluded for failure to disclose it in a timely fashion during pretrial discovery.

CPLR § 3101(d) fails to provide a time frame for expert disclosure, thus, Courts must look to the facts of each case to determine whether the disclosure is "untimely" within the context of a particular case. See, Safrin v. DST Russian & Turkish Bath, Inc., 16 AD3d 656, 791 N.Y.S.2d 443, 444 (2d Dept. 2005)(upholding preclusion of expert affidavit, submitted in support of motion for summary judgment first disclosed after note of issue filed); Blade v. North Hempstead, 277 AD2d 268,269, 715 N.Y.S.2d 735 (2d Dept. 2000)(upholding consideration of expert affidavit on motion for summary judgment despite non-compliance with demand for expert disclosure, but where disclosure was made prior to filing of note of issue and where no there was no indication of willful non-compliance or prejudice).

Plaintiff made his demand for expert disclosure on March 16, 2004, to which Defendant did not respond until March 15, 2005, after the note of issue had been filed, in February, 2005, and the case certified as trial ready.

In addition, Defendant disclosed at that time, not only the expert's report dated January, 2005 but an earlier report by the same expert dated December 5, 2001. The excuse offered by Defendant is that the earlier report "appears to have been obtained at the time of these [settlement] negotiations when the claims examiner was trying to verify Plaintiff's insistence of having sustained a fracture. When the suit was commenced the file was transferred to another section of the company's claims department, with a new team of people. Prior investigation was buried in the paper file and forgotten". Further, Defendant claims its client did not provide it a copy of the report until March, 2005 and that it was provided to Plaintiff immediately thereafter.

Plaintiff rightly argues that counsel has an obligation to respond diligently to discovery demands and verify responses with their client and insurer. Under the circumstances of this case, the Court finds that Defendant has failed to show an adequate excuse for its late disclosure. Particularly, given the existence of the earlier report, Defendant must have known from the outset, that expert testimony would be required. See, Vigilant Ins. Co. v. Barnes, 199 AD2d 257, 604 N.Y.S.2d 248 (2d Dept. 1993). Accordingly, the affidavits of Dr. Tantleff are precluded and Plaintiff is entitled to summary judgment on the issue of serious injury. [*3]

It is the Court's understanding that the parties already have a date from the Central Calendar Part for an inquest as to Plaintiff's damages.

The foregoing constitutes the decision and order of the Court.

Dated: White Plains, New York

July 13, 2005____________________________

HON. LINDA S. JAMIESON

Justice of the Supreme Court

APPEARANCES OF COUNSEL