CPLR § 3101(d) Trial Preparation
Ryan v St. Francis Hosp., 2009 NY Slip Op 04045, (App. Div., 2nd, 2009)
The Supreme Court providently exercised its discretion in precluding
the testimony of the plaintiffs' proposed expert on the subject of
whether the defendant Andrew E. Lituchy was the attending physician of
record and in charge of the injured plaintiff's care during the entire
hospitalization on the ground that there were no facts in the record to
support the expert's opinion (see Cassano v Hagstrom, 5 NY2d 643, 646; Martinez v Mullarkey, 41 AD3d 666, 670; Simo v New York City Tr. Auth., 13 AD3d 609, 611).
Under the circumstances, the Supreme Court also providently
exercised its discretion in precluding the testimony of the plaintiffs'
proposed expert as to purported departures from the [*2]standard
of care by certain nonparty physicians. The plaintiffs failed to give
notice prior to trial of the specific subject matter of the expert's
testimony setting forth a different theory of recovery not readily
discernable from the plaintiffs' bill of particulars and the statements
in their CPLR 3101(d) responses (see Durant v Shuren, 33 AD3d 843, 844; Dalrymple v Koka, 2 AD3d 769, 771).
The bold is mine.