Substitution of Experts: CPLR § 3101(d)

CPLR § 3101(d) Trial Preparation

Maddaloni Jewelers, Inc. v Rolex Watch U.S.A., Inc., 2010 NY Slip Op 04454 (App. Div., 1st, 2010)

The motion court exercised its discretion in a provident manner in
denying defendant's motion for preclusion. Although defendant may have
incurred expenses in preparing a rebuttal to plaintiff's initial
expert's report, there was no indication that plaintiff's substitution
of its expert was willful or prejudicial to defendant
(see Gallo v
Linkow
, 255 AD2d 113, 117 [1998]). The record demonstrates that the
case had been already been delayed due to defense counsel's surgery and
was again delayed because of a change of Justices assigned to the case.
Plaintiff's service of its substitution of experts was neither done on
the eve of trial nor at the last-minute, as no trial date was set at the
time the substituted expert was hired (see e.g. Mateo v 83 Post Ave. Assoc., 12 AD3d 205,
205-206 [2004]). Furthermore, even assuming that plaintiff was required
to show "good cause" (CPLR 3101[d][1][i]), its proffered reason for the
substitution of experts, namely, the breakdown in its relationship with
its former expert, sufficiently established such "good cause
" (compare Lissak v Cerabona, 10 AD3d 308,
309-310 [2004]).

The motion court providently exercised its discretion in refusing
to award legal fees and costs attributable to the substitution of the
expert. "An award of attorneys' fees as a direct remedy must be based on
contract or statute" or where there is established wrongdoing (City
of New York v Zuckerman, et al.,
234 AD2d 160 [1st Dept 1996], app
dismissed
90 NY2d 845 [1997]). While a party may be ordered to bear
the cost of his or her adversary's rebuttal expert where a party fails
to disclose the substance of the expert's testimony in accordance with
CPLR 3101 and where the matter is on for trial (see St. Hilaire v
White
, 305 AD2d 209 [2003]), here, plaintiff's notice of
substitution of its expert was offered months before the action was
scheduled [*2]for trial, and there is no
showing that plaintiff acted improperly in attempting to substitute
experts.

The bold is mine.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s