“We have to move these cases timely.”

Key Takeaways

• Market Street involved expert preclusion at a nonjury no-fault trial.
• The insurer sought relief through CPLR 4404(b), not the jury-trial provision in subdivision (a).
• The Appellate Term criticized the late disclosure and use of fax but found the preclusion unjustified on this record.
• The result was a new trial limited to medical necessity and fee-schedule billing.
• The opinion names Jason Tenenbaum as counsel for the insurer; it does not report the later trial’s outcome.

What happened in Market Street?

Market St. Surgical Ctr. v Global Liberty Ins. Co., 2018 NY Slip Op 51822(U), was decided December 7, 2018, by the Appellate Term, Second Department, for the 2d, 11th and 13th Judicial Districts.

The case arose in Kings County Civil Court. The parties had narrowed the trial to two issues: whether the services were medically necessary and whether the provider billed under the Workers’ Compensation fee schedule.

They stipulated that the elements of the provider’s case were established and that the insurer had timely denied the claim. Those stipulations explain the limited scope of the eventual new trial.

The expert-preclusion problem

At the nonjury trial, the provider sought to exclude the insurer’s experts. Its objections concerned untimely disclosure and delivery by fax after counsel had rejected that method of notice.

Defense counsel argued that the testimony would cause no prejudice and advised that the witnesses were present. The trial court nevertheless precluded them on February 9, 2016.

The short phrase preserved in this post’s title appears in the appellate opinion: the court wanted to move cases timely. The question on appeal was whether the record supported the exclusion, not whether efficient calendars matter.

The firm’s CPLR 3101(d)(1) discussion addresses related expert-disclosure decisions. Market Street adds a concrete trial and post-trial example to that broader subject.

Why the CPLR 4404(b) motion matters

The insurer moved on February 24, 2016, to set aside the decision under CPLR 4404(b). Civil Court denied that motion by an order entered January 6, 2017. The appeal was from that denial.

This was a nonjury case. Keeping subdivision (b) visible avoids confusing the procedure with jury-verdict motions under subdivision (a). The distinction comes directly from the reported procedural history.

Jason’s note records that he sought relief in the trial court before pursuing the appeal. That sequence is part of the article’s historical value; the decision was not simply an objection followed by an unexplained reversal.

The dates above describe this case. They are not a deadline calculator for another motion, which requires review of the applicable rules, orders and service history.

Willfulness, prejudice and the limits of the result

The Appellate Term discussed CPLR 3101(d)(1) through Cutsogeorge v Hertz and Burbige v Siben & Ferber. It found no showing here of intentional or willful nondisclosure or prejudice to the provider.

It also stated that disclosure should have been more prompt and should have been made by mail as requested. The reversal did not endorse the way notice was handled.

Both parts belong in the case summary. Omitting the criticism suggests late or improperly served disclosure is harmless; omitting the absence of prejudice makes the reversal difficult to understand.

The court granted the CPLR 4404(b) motion and remitted the matter for a new trial on the two stipulated issues. It did not decide those issues in the insurer’s favor.

Jason’s original reaction — December 18, 2018

These short selections come from the original post:

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

How could I not appeal this?

The original note also recounted a longer courtroom exchange. The published opinion confirms the title’s short phrase, but this revision does not present the longer recollection as a verified transcript.

Jason’s reaction conveys why he thought the exclusion warranted review. The court’s opinion, rather than that reaction, establishes the procedural result and the grounds for reversal.

Evidence disputes elsewhere in the archive

Total Family v Mercury illustrates a different problem: spreadsheet evidence that did not establish the asserted verification toll. The appeal had a mixed disposition, not an across-the-board win or loss.

McMahon and CPT Assistant concerns excluded coding guidance in arbitration. Unlike Market Street, the remedy was a new arbitration rather than a limited new court trial.

Those comparisons help distinguish the setting, missing material and requested relief. A trial witness, a spreadsheet and incorporated coding guidance raise different questions even when each affects a no-fault payment dispute.

For a current no-fault defense matter, preserve the disclosures, delivery evidence, objections, trial record and post-trial papers. The Legal Encyclopedia provides broader procedural navigation.

For review of a current file, request a Free Case Review.

Last reviewed: September 2026 — editorial source check against the reported decision. Original publication date retained. This historical result is not permission to disregard disclosure requirements.