“We have to move these cases timely.”December 18, 2018

Market St. Surgical Ctr. v Global Liberty Ins. Co., 2018 NY Slip Op 51822(U)(App. Term 2d Dept. 2018)

I can honestly say so much about what happened here, but  I am going to bite my tongue in the name of scholarship.

“At a nonjury trial, plaintiff’s attorney moved to preclude defendant’s expert witnesses on the grounds that disclosure of those witnesses was untimely and that disclosure had been made by facsimile transmission, a method of notice which plaintiff’s counsel had previously rejected. Defense counsel argued that there would be no prejudice to plaintiff as a result of the testimony, and counsel advised the court that his witnesses were present to testify. On February 9, 2016, the Civil Court granted plaintiff’s motion to preclude the witnesses, stating that it did not think that prejudice was an issue but “we have to move these cases timely.” On February 24, 2016, defendant timely moved, pursuant to CPLR 4404 (b), to set aside the decision, and plaintiff opposed the motion. By order entered January 6, 2017, the Civil Court denied defendant’s motion.”

“While defendant’s service of the expert witness notices at issue should have been more prompt (see Cutsogeorge, 264 AD2d at 754) and made by mail as requested by plaintiff, the Civil Court erred in precluding defendant’s expert witnesses, as the record clearly demonstrates that there was no showing by plaintiff that defendant had intentionally or willfully failed to promptly disclose, or that plaintiff had been prejudiced.”

Here is my favorite line from what happened in Court: ““All right. Based on all of this I don’t think prejudice is an issue here.  The matter is we have to move these cases timely.  I will grant your motion.”  “Once again, as I said I may not be correct.  One thing, I am consistent.  I could be consistently wrong with that.  I’m going to grant the motion to preclude.”

How could I not appeal this?  But I at least have the judge a crack through a 4404(b) motion to do the right thing.  She did not take me up on my invitation.  Guess she was consistent…

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