Jacobs v Nussbaum

Jacobs v Nussbaum 2012 NY Slip Op 07632 Decided on November 14, 2012 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 November 14, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
RANDALL T. ENG, P.J.
PETER B. SKELOS
PLUMMER E. LOTT
JEFFREY A. COHEN, JJ.
2012-01472
(Index No. 25451/06)

[*1]Percy Jacobs, respondent,

v

Milton Nussbaum, et al., appellants, et al., defendants.




Mound Cotton Wollan & Greengrass, New York, N.Y. (Paul S.
Danner of counsel), for appellants.
The Jacob D. Fuchsberg Law Firm, LLP, New York, N.Y.
(Leslie Kelmachter and Christopher Nyberg
of counsel), for respondent.


DECISION & ORDER

In an action to recover damages for personal injuries, etc., the defendants Milton Nussbaum and Sarah Nussbaum appeal, by permission, from an order of the Supreme Court, Kings County (Schack, J.), dated November 22, 2011, which granted the plaintiff's application for additional time to retain expert witnesses and provide expert witness disclosure pursuant to CPLR 3101(d) and, thereupon, adjourned their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs.

"[A] party's failure to disclose its experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness does not divest a court of the discretion to consider an affirmation or affidavit submitted by that party's experts in the context of a timely motion for summary judgment" (Rivers v Birnbaum, ___ AD3d ___, 2012 NY Slip Op 06935 [2d Dept 2012]). Here, considering all of the relevant circumstances, the Supreme Court providently exercised its discretion in granting the plaintiff's application for additional time to retain expert witnesses and provide expert witness disclosure pursuant to CPLR 3101(d) (id. at *; Hayden v Gordon, 91 AD3d 819, 820; Ocampo v Pagon, 68 AD3d 1077, 1077-1078).

The appellants' remaining contentions are without merit.
ENG, P.J., SKELOS, LOTT and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino [*2]

Clerk of the Court