Coleman v New York City Tr. Auth., 2015 NY Slip Op 08906 (1st Dept. 2015)
The general rule from the Second Department is a violation of 3101(d) will result in an adjournment of the trial. The First Department goes either way. The dispositive factor here seems to be surprise. The biomecancial engineer came from nowhere.
“The trial court providently exercised its discretion in precluding testimony from defendants’ biomechanical and accident reconstruction experts because defendants served their disclosures only days before the scheduled trial date. We see no reason to disturb the trial court’s exercise of discretion in precluding this testimony (see LaFurge v Cohen, 61 AD3d 426, 426 [1st Dept 2009], lv denied 13 NY3d 701 [2009]), whether applying a “good cause” standard (Peguero v 601 Realty Corp., 58 AD3d 556, 564 [1st Dept 2009]) or a “willful or prejudicial” standard (see Banks v City of New York, 92 AD3d 591, 591 [1st Dept 2012]). We also see no reason to disturb the trial court’s exercise of discretion in precluding testimony regarding a seatbelt defense (cf. Banks, 92 AD3d at 591 [even though economist’s report was exchanged on eve of trial, this Court refused to disturb Supreme Court’s exercise of discretion permitting economist’s testimony regarding lost wages, which was pleaded in the bill of particulars]).”
