JEROME BURGESS II AND JUSTIN RELIFORD PLAINTIFFS APPELLANTS v. MALCOM MEYER AND PETER MONACELLI DEFENDANTS RESPONDENTS (2014)

Supreme Court, Appellate Division, Fourth Department.

JEROME BURGESS, II AND JUSTIN RELIFORD, PLAINTIFFS–APPELLANTS, v. MALCOM MEYER AND PETER MONACELLI, DEFENDANTS–RESPONDENTS.

CA 13–01356

Decided: May 02, 2014

PRESENT: SCUDDER, P.J., CENTRA, FAHEY, PERADOTTO, AND WHALEN, JJ.

ATHARI & ASSOCIATES, LLC, UTICA (MO ATHARI OF COUNSEL), FOR PLAINTIFFS–APPELLANTS. FELDMAN KIEFFER, LLP, BUFFALO (ALAN J. BEDENKO OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiffs appeal from an order that, inter alia, denied that part of their motion seeking to strike parts of a report submitted by defendants' expert. Before a note of issue was filed and before there was any expert disclosure between the parties (cf. Heyward v. Shanne, 114 AD3d 1212, 1213–1214), plaintiffs moved in part pursuant to CPLR 3103 and 22 NYCRR 100.3(B)(5) for an order striking all references in the report “to socio-economic, eugenic, or other euthenics as an alternative intervening event sufficient to supersede cause.” We conclude that Supreme Court properly denied that part of plaintiffs' motion inasmuch as neither CPLR 3103 nor 22 NYCRR 100.3(B)(5) authorizes the court to grant the relief sought by plaintiffs.

Frances E. Cafarell

Clerk of the Court

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