Judgment, Supreme Court, New York County (Eileen A. Rakower, J.), entered April 10, 2009, upon a jury verdict in favor of Triborough Bridge and Tunnel Authority (TBTA), the only remaining defendant in this action, affirmed, without costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Moskowitz, Renwick, DeGrasse, Manzanet-Daniels, JJ.
The trial court properly exercised its discretion in denying plaintiff's application to preclude TBTA from introducing the expert testimony of a professional engineer as to the cause of the accident. Preclusion of expert evidence on the ground of failure to give timely disclosure, as called for in CPLR 3101(d)(1)(i), is generally unwarranted without a showing that the noncompliance was willful or prejudicial to the party seeking preclusion (Nathel v Nathel, 55 AD3d 434 ). Here, contrary to plaintiff's contention, the delay of the expert disclosure was not a result of mere failure to prepare. Defense counsel explained that he was retained as trial counsel shortly before the trial, and that although he had contacted the expert soon thereafter, the expert needed additional time to do research to form an opinion as to the cause of the accident. Furthermore, the expert disclosure was made about a week after the expert was retained. Under these circumstances, we cannot conclude that the delayed expert disclosure was willful (see McDermott v Alvey, Inc., 198 AD2d 95 ).
Nor can we conclude that the delayed disclosure was prejudicial. To overcome any prejudice that may have resulted from allowing the expert to testify, the trial court gave plaintiff the opportunity to voir dire the expert to avoid any surprises during cross-examination. Although plaintiff accepted the opportunity to do so, he now contends that such a remedy did not adequately cure the prejudice because he did not have sufficient time to prepare for a cross-examination or obtain other evidence to challenge the expert's testimony. He also contends that the trial court rushed him by reminding him that the jury was waiting while he was questioning the expert. However, counsel never asked for an adjournment or additional time to prepare challenges to the expert's testimony, or to retain his own expert, and nothing in the record shows that the court interfered with or cut short counsel's voir dire of the expert in any way. Additionally, his cross-examination brought out testimony that was favorable to plaintiff on certain material issues.
In any event, even if the trial court did improvidently exercise its discretion in permitting the expert to testify, any error was harmless. Plaintiff argues that the testimony left the jury with an unchallenged expert opinion that his own negligence caused the accident. However, the jury's verdict was based on its finding of lack of negligence on TBTA's part, and the jury never reached the issue of plaintiff's own negligence (see Gilbert v Luvin, 286 AD2d 600 ). All concur except Manzanet-Daniels, J. who dissents in a memorandum as follows:
MANZANET-DANIELS, J. (dissenting)
Because I believe that the trial court abused its discretion in denying plaintiff's application to preclude the testimony of defendant's professional engineer, I respectfully dissent.
Plaintiff herein was traveling on the Triborough Bridge when his Ford Explorer overheated. An employee of defendant Triborough Bridge and Tunnel Authority, John Georges, pushed plaintiff' car across the bridge with his wrecker. It is undisputed that plaintiff had his car in neutral and his key in the off position when Georges began pushing him. It is also undisputed that placing a car in neutral disables the power steering and brakes, though it does not preclude manual steering and braking of the vehicle. Finally, it is undisputed that the span across which plaintiff was being pushed crested at its midpoint, and then declined as one traveled towards the Queens side of the bridge.
Georges gave plaintiff four or five pushes towards the midpoint of that bridge. At that point, Georges gave plaintiff one final push, and plaintiff's vehicle acquired momentum due to the decline of the roadway. Plaintiff attempted to apply the brakes, but testified that the brakes would not respond, and felt "really hard." As plaintiff neared the Hoyt Avenue exit, the road declined more precipitously. Plaintiff testified that the vehicle "lurched forward" and he collided with the back of a tractor trailer. He ascribed this lurch to "gravity because [he] was going down the slope." Plaintiff testified that his vehicle was traveling approximately 25-30 miles when he crested over the bridge, accelerating to approximately 40 miles per hour at the time of impact. Plaintiff testified that at no point did he turn the engine on to restore the power steering and brakes. John Georges, the operator of the wrecker, similarly testified that as plaintiff crested over the bridge his vehicle acquired speed. Georges observed the brake lights on plaintiff's vehicle. As plaintiff approached the exit, Georges observed plaintiff's vehicle "wiggle," or swerve, as he attempted to avoid the tractor trailer. Georges testified that he "thought" plaintiff had restarted his vehicle. However, plaintiff's vehicle was in the "off" position when Georges arrived at the accident scene moments after impact.
During the course of discovery, plaintiff demanded, pursuant to CPLR 3101(d)(1)(i), discovery of any expert witness defendant intended to call at trial. The court also issued an order requiring the parties to "supply expert witness disclosure pursuant to CPLR." While defendant provided notice that it would offer the testimony of medical experts, at no time prior to trial did defendant indicate that it would offer the testimony of an expert engineer as to the cause of the accident.
Trial commenced on March 25, 2009. Plaintiff testified on his case-in-chief, but did not present any expert engineering testimony. After plaintiff rested, defendant served notice of its intent to present the testimony of expert engineer Dr. Bruce Gambardella. Dr. Gambardella, according to the expert disclosure, was expected to render an opinion regarding "the mechanics of injury and cause of the occurrence," including collision speed, vehicle performance parameters, and the capacity of the vehicle's braking system to "retard the vehicle on the subject grade and even stop the vehicle . . . with moderate effort." This notice was apparently attached to the back of defendant's requests to charge the jury, which had been served on plaintiff on March 27, 2009, a Friday.
When the parties next appeared in court, on Monday, plaintiff's counsel registered an objection to the late disclosure. When the court inquired as to the reason for the late notice, defense counsel replied that the witness had just been hired and that he thought the witness' testimony would "help the jury." Counsel stated, "I thought it would be a very positive thing . . . if we had someone who knew about brakes, who was a specialist in brakes, . . . I would like the Court and the jury to know how does a 1994 Ford Explorer travel in neutral with the engine off on that decline and ...