The following electronically filed papers were read upon this motion: Notice of Motion/Order to Show Cause 122-126 Answering Papers 129-130 Reply 127 Briefs: Plaintiff’s/Petitioner’s Defendant’s/Respondent’s Decision/Order Plaintiff seeks an Order precluding the Kelly defendants from offering expert witness testimony at a trial of this matter, or alternatively, for this Court to make whatever Order shall be just. The Kelly defendants oppose the requested relief. For the reasons set forth herein, the plaintiff’s motion is denied. CPLR §3101 (d)(1) provides, in pertinent part, that “where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert’s testimony at the trial solely on grounds of noncompliance with this paragraph,” unless the record supports a finding of intentional or willful failure to disclose and a prejudice to the opposing party (Burbige v. Siben & Ferber, 115 AD3d 632 [2d Dept 2014]). Here, there is no evidence that the Kelly defendants willfully or intentionally withheld and/or failed to disclose their expert; moreover, there is no evidence that the plaintiff is prejudiced. Defendants state that they began seeking an expert in September 2019, and that they approached several experts and were finally able to retain a “qualified expert who was available to testify in Suffolk County, New York and had experience with construction in the Hamptons area.” Defendants state that they were able to retain this expert in March 2020. Furthermore, although plaintiff maintains that the notice of expert disclosure was provided only three business days prior to March 18, 2020, on the afternoon of March 13, 2020, the 18th was a date in the Calendar Control Part, not a firm trial date before an assigned Justice. On March 18, 2020, the parties were to “put in a slip,” meaning that the actual trial may not take place for days or weeks, depending upon the availability of an open Supreme Court part able to hear the case. Thus, there is no evidence that the expert notice was necessarily provided on the “eve” of trial as plaintiff contends. Furthermore, as it happens, AO/68/20 dated March 16, 2020 postponed until further notice all civil jury trials in which opening statements had not commenced by that date. As of the date of this Decision and Order, jury trials in civil and criminal cases are only now being commenced on a limited “trial basis.” In the intervening nearly six (6) months since the closure of physical courthouse, the Courts have nonetheless been conducting business, including conducting extensive virtual conferences on matters, including this Court, which held a virtual status conference of this matter on April 15, 2020. On April 15, 2020, this matter was adjourned for mediation to take place on June 22, 2020; however, as soon as the suspension of non-essential document filing was lifted on May 4, 2020, plaintiff made the instant motion on May 12, 2020. Thus, plaintiff has had the benefit of many months to determine whether it wishes to retain an expert witness, and also to research and retain its own expert/rebuttal witness, which could have been accomplished, to some extent, virtually (see Barchella Contracting Co., Inc. v. Cassone, 88 AD3d 832 [2d Dept 2011]). Based upon the limited civil jury trials that are to now commence in Suffolk County, the plaintiff likely has the benefit of additional time to do so and should be afforded any reasonable adjournment in order to avoid any potential prejudice possibly caused by the allegedly short notice (Shopsin v. Siben & Siben, 289 AD2d 220 [2d Dept 2001]). Defendants’ expert disclosure does not introduce any new theories of defense; therefore, defendant’s expert testimony should not be stricken on this basis either (Rivera v. New York City Housing Authority, 177 AD3d 499 [1st Dept 2019]; Rowan v. Cross County Ski & Skate, Inc., 42 AD3d 563 [2d Dept 2007]; cf. Caccioppoli v. City of New York, 50 AD3d 1079 [2d Dept 2008]). Architect Frank Genese will testify as to “[d]efficient work performed by plaintiff…[t]he value of the work, labor and materials allegedly performed by [p]laintiff…and [t]he quantity and/or quality of the work allegedly performed by [plaintiff]…” This proposed expert testimony goes to the heart of the deposition testimony offered by defendant James Kelly, the cause of action for foreclosure of the mechanic’s lien plaintiff placed against the subject property, plaintiff’s claims that it performed the construction services in a workmanlike manner, that additional construction services were performed at the property at defendants’ request, that the defendants breached the contract with plaintiff, and that the defendants were unjustly enriched without paying “the full, fair and reasonable value of said work” (Complaint, see also 30). Moreover, the Kelly defendants assert two counterclaims in their answer sounding in breach of contract for non-conforming work and willful exaggeration of the mechanic’s lien, to which Mr. Genese’s proposed testimony also pertains. The fact that Mr. Genese may not have inspected the subject property until March 2020, more than four years after plaintiff’s work at the property ceased, goes to the weight to be afforded to his opinion testimony by the trier of fact, not its admissibility. Furthermore, the trial court will make any ruling as to admissibility once it has had the opportunity to see and hear the witness. Plaintiff’s motion is denied in its entirety. The foregoing constitutes the Decision and Order of this Court. Dated: September 9, 2020
