3101(d) never applies toSeptember 25, 2020

Duman v Scharf, 2020 NY Slip Op 04537 (2d Dept. 2020)

“At the damages phase of the trial, the defendants called as a witness one of the plaintiff’s treating physicians, who had examined the plaintiff following the accident and concluded in his medical report that “[t]he symptoms that [the plaintiff] is experiencing in the right-sided extremity are likely related to [his] previous stroke.” However, the Supreme Court ruled that the treating physician would be precluded from testifying on the issue of causation based on the defendants’ failure to provide the plaintiff with notice of such testimony in advance of trial pursuant to CPLR 3101(d). Counsel for the defendants provided the Supreme Court with precedent from this Court indicating that CPLR 3101(d) applied only to experts retained to give testimony at trial, and not to treating physicians. Nevertheless, despite noting a 1999 decision from this Court supporting the defendants’ position, the Supreme Court adhered to its determination to preclude the proposed testimony.”

LOL. reversed.

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