CONNORS v. SOWA (1998)

 Supreme Court properly exercised its discretion “in the interests of justice and upon a showing of good cause” (11 NYCRR 202.17[h] ) in allowing plaintiff's treating physician to testify despite plaintiff's failure to provide defendants with a medical report from him.   Defendants had been provided with the report of plaintiff's treating physician to the no-fault insurance carrier, as well as his medical records and the records of all other physicians upon which he relied.   Defendants conducted two physical examinations of plaintiff and did not complain until trial about the failure to provide the report (see, Freeman v. Kirkland, 184 A.D.2d 331, 332, 584 N.Y.S.2d 828;  McDougald v. Garber, 135 A.D.2d 80, 94, 524 N.Y.S.2d 192, mod. on other grounds 73 N.Y.2d 246, 538 N.Y.S.2d 937, 536 N.E.2d 372;  cf., Kelly v. Tarnowski, 213 A.D.2d 1054, 624 N.Y.S.2d 504).

 The court also properly permitted the testimony of two physicians concerning the permanency of plaintiff's injuries.   Plaintiff alleged permanency in her bill of particulars, and thus defendants were neither surprised nor prejudiced by that testimony (see, Serpe v. Eyris Prods., 243 A.D.2d 375, 663 N.Y.S.2d 542).   Finally, the verdict does not differ materially from what would be reasonable compensation (see, CPLR 5501[c] ).

Judgment unanimously affirmed with costs.

MEMORANDUM: