Moussa Keita, previously known as Adama Diabate, Plaintiff–Respondent, v. Zahava Services Corp., et al., Defendants–Appellants.

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Supreme Court, Appellate Division, First Department.

Moussa Keita, previously known as Adama Diabate, Plaintiff–Respondent, v. Zahava Services Corp., et al., Defendants–Appellants.

1287N

Decided: May 26, 2016

Friedman, J.P., Acosta, Saxe, Gische, Webber, JJ. Connors & Connors, P.C., Staten Island (Robert J. Pfuhler of counsel), for appellants. Spiegel & Barbato, LLP, Bronx (Brian C. Mardon of counsel), for respondent.

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Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered October 8, 2015, which denied defendants' motion to preclude plaintiff from offering expert testimony, or alternatively, to compel him to exchange his expert's reports, notes and records, and submit to a vocational rehabilitation examination, unanimously affirmed, without costs.

The motion court providently exercised its discretion in denying defendants' motion.  Plaintiff's CPLR 3101(d) notice provides enough detail regarding the substance of his expert's expected testimony (see CPLR 3101[d][1][i] ).

Defendants are not entitled to the expert's reports, notes or records (see Richards v. Herrick, 292 A.D.2d 874 [4th Dept 2002] ).  Nor are they entitled to a vocational rehabilitation examination of plaintiff.  Defendants' motion was made after the filing of the note of issue, and they have not shown that unusual or unanticipated circumstances developed subsequent to the filing (see 22 NYCRR 202.21[d];  Schroeder v. IESI N.Y. Corp., 24 AD3d 180, 181 [1st Dept 2005];  Silverberg v. Guzman, 61 AD3d 955, 956 [2d Dept 2009];  Schenk v. Maloney, 266 A.D.2d 199, 200 [2d Dept 1999] ).

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CLERK