MARTIN MARTIN v. NYRAC INC (1999)

In related actions to recover damages for personal injuries, etc., the plaintiff in Action No. 2, Michael Chakmakjian, appeals from so much of an order of the Supreme Court, Queens County (Milano, J.), dated December 10, 1997, as granted the motion of the defendant in Action No. 2, NYRAC, Inc., d/b/a Budget Rent-A-Car of New York City, for summary judgment dismissing the complaint in Action No. 2.

ORDERED that the order is reversed insofar as appealed from, without costs or disbursements, the motion is denied, and the complaint in Action No. 2 is reinstated.

 Since the appellant failed to demonstrate good cause for failing to disclose expert information regarding his two expert witnesses until the eve of trial, he was properly precluded by a previous order of the court from offering the testimony of these witnesses (see, CPLR 3101[d][1][i];  Douglass v. St. Joseph's Hosp., 246 A.D.2d 695, 667 N.Y.S.2d 477;  Tamborino v. Burakoff, 224 A.D.2d 609, 638 N.Y.S.2d 697;  Grassel v. Albany Med. Ctr. Hosp., 223 A.D.2d 803, 636 N.Y.S.2d 154).

 However, subsequent to the preclusion order, the court granted the appellant's application to mark the case off the calendar, permitting the appellant the opportunity to conduct further discovery, including the disclosure of new expert information in accordance with CPLR 3101(d)(1)(i).   Accordingly, it was error to thereafter grant the respondent's motion for summary judgment dismissing the complaint on the ground that the appellant could not make out a prima facie case in the absence of expert testimony (see generally, Spreer v. Whitestone Sav., 194 A.D.2d 602, 598 N.Y.S.2d 805).

MEMORANDUM BY THE COURT.