JOANNE MORELAND BOTH INDIVIDUALLY AND DERIVATIVELY AS MEMBER OF PCL LLC PLAINTIFF APPELLANT v. DAVID HUCK AND PCL LLC DEFENDANTS RESPONDENTS (2017)

MEMORANDUM AND ORDER

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

Memorandum:  Plaintiff appeals from an order that, inter alia, granted defendants' motion for summary judgment dismissing the amended complaint and denied plaintiff's cross motion to strike the affidavits of three witnesses, which were submitted by defendants in support of their motion for summary judgment.

We affirm the order for reasons stated in the decision at Supreme Court.  We write only to address plaintiff's contention that the court should have granted her cross motion to strike the affidavits of the three subject witnesses because defendants failed to provide timely expert witness disclosure for those witnesses pursuant to CPLR 3101(d)(1)(i).  We reject that contention.  Even assuming, arguendo, that each of the three witnesses provided expert testimony in his affidavit, we note that CPLR 3212(b) provides in relevant part that, “[w]here an expert affidavit is submitted in support of, or opposition to, a motion for summary judgment, the court shall not decline to consider the affidavit because an expert exchange pursuant to [CPLR 3101(d)(1)(i) ] was not furnished prior to the submission of the affidavit.”

Mark W. Bennett

Clerk of the Court