Barchella Contr. Co., Inc. v Cassone

Barchella Contr. Co., Inc. v Cassone 2011 NY Slip Op 07387 Decided on October 18, 2011 Appellate Division, Second 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 October 18, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
MARK C. DILLON, J.P.
ARIEL E. BELEN
SHERI S. ROMAN
ROBERT J. MILLER, JJ.
2010-08057
(Index No. 7939/07)

[*1]Barchella Contracting Co., Inc., respondent,

v

Mary Lou Cassone, appellant.




Danzig Fishman & Decea, White Plains, N.Y. (Thomas B. Decea
and Yenisey Rodriguez-McCloskey of counsel), for appellant.
Piscionere & Nemarow, P.C., Rye, N.Y. (Anthony G.
Piscionere of counsel), for respondent.


DECISION & ORDER

In an action to recover damages for breach of contract and to recover in quantum meruit for services rendered, the defendant appeals from a judgment of the Supreme Court, Westchester County (Wood, J.), dated July 7, 2010, which, upon, inter alia, the granting of the plaintiff's motion to preclude the defendant from offering expert testimony at trial, and upon a jury verdict awarding the plaintiff the principal sums of $133,333 for breach of contract and $350,000 in quantum meruit for services rendered, is in favor of the plaintiff and against the defendant in the principal sum of $483,333.

ORDERED that the judgment is reversed, on the facts and in the exercise of discretion, with costs, the plaintiff's motion to preclude the defendant from offering expert testimony at trial is denied, and the matter is remitted to the Supreme Court, Westchester County, for a new trial.

Preclusion for failure to comply with CPLR 3101(d) is improper " unless there is evidence of intentional or willful failure to disclose and a showing of prejudice'" (Johnson v Greenberg, 35 AD3d 380, 380, quoting Shopsin v Siben & Siben, 289 AD2d 220, 221 [internal quotation marks omitted]). Here, while there was evidence that the defendant's belated disclosure of her expert information in response to the plaintiff's demand therefor was intentional, any potential prejudice to the plaintiff was ameliorated by the more than six months that passed between the defendant's disclosure of her expert information and the commencement of the trial (see Gayz v Kirby, 41 AD3d 782). Accordingly, the Supreme Court improvidently exercised its discretion in granting the plaintiff's motion to preclude the defendant from offering expert testimony at trial (id.; see Johnson v Greenberg, 35 AD3d 380; Dailey v Keith, 306 AD2d 815, affd 1 NY3d 586).

Since the defendant was prejudiced by the preclusion, the matter must be remitted to the Supreme Court, Westchester County, for a new trial.

The defendant's remaining contentions are without merit.
DILLON, J.P., BELEN, ROMAN and MILLER, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court