NOBLE v. COLE (1999)

Appeal from an order of the Supreme Court (Tomlinson, J.), entered January 13, 1999 in Fulton County, which, inter alia, denied plaintiffs' motion to amend their response to defendants' demand for expert witness disclosure.

Plaintiff David Noble and his wife, derivatively, commenced this personal injury action for damages allegedly sustained in an automobile accident that occurred on April 13, 1996 at the intersection of State Route 5 and Pine Street in the City of Amsterdam, Montgomery County.   During trial, plaintiffs proffered the testimony of Richard Voorhees, an instructor of emergency vehicle personnel, and, upon defendants' objection, Supreme Court (Ferradino, J.) precluded such expert testimony on the ground that plaintiffs failed to disclose the existence of Voorhees in accordance with the requirements of CPLR 3101(d)(1)(i).   Thereafter, the trial concluded with a hung jury.

Prior to the commencement of a second trial, plaintiffs served defendants with a supplemental response to defendants' CPLR 3101(d)(1)(i) demand, disclosing Voorhees as an additional expert witness and providing defendants with his curriculum vitae.   Upon defendants' refusal to accept said response, plaintiffs moved for an order permitting them to supplement their previous response to the demand for expert witness disclosure.   Supreme Court denied plaintiffs' motion and this appeal ensued.

We concur with Supreme Court's determination that the prior order of preclusion became the law of the case, thereby precluding Supreme Court from considering plaintiffs' application for an order permitting the service of an amended response to defendants' demand for expert witness disclosure (see, Ingelston v. Francis, 217 A.D.2d 843, 629 N.Y.S.2d 517).   Accordingly, Supreme Court's order is affirmed.

ORDERED that the order is affirmed, with costs.

CREW III, J.

MERCURE, J.P., PETERS, CARPINELLO and GRAFFEO, JJ., concur.