RASSAEI v. KESSLER

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Supreme Court, Appellate Division, Second Department, New York.

Patricia RASSAEI, Appellant, v. Brian P. KESSLER, etc., et al., Respondents.

Decided: July 27, 1998

Before BRACKEN, J.P., and THOMPSON, PIZZUTO and ALTMAN, JJ. Bernstein & Bernstein, New York, N.Y. (Marc A. Bernstein and Leigh Bernstein of counsel), for appellant. Aydelott & Aydelott, Mount Kisco, N.Y. (Christopher P. Keenan of counsel), for respondents.

In an action to recover damages for personal injuries based on medical malpractice, the plaintiff appeals from an order of the Supreme Court, Rockland County (Miller, J.), dated October 10, 1997, which granted the defendants' application to preclude her from offering expert testimony at the trial.

ORDERED that on the court's own motion, the notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see, CPLR 5701 [c] );  and it is further,

ORDERED that the order is affirmed, with costs.

The order appealed from did not determine a motion made on notice, and therefore is not appealable as of right (see, Greater N.Y. Mut. Ins. Co. v. Lancer Ins. Co., 203 A.D.2d 515, 611 N.Y.S.2d 35;  Delloiaco v. City of New York, 174 A.D.2d 705, 571 N.Y.S.2d 555).   However, under the particular facts presented, we deem the notice of appeal to be an application for leave to appeal, and grant the application in the interest of justice (see, e.g., Sena v. Nationwide Mut. Fire Ins. Co., 198 A.D.2d 345, 603 N.Y.S.2d 173;  Greenfield v. Greenfield, 147 A.D.2d 440, 537 N.Y.S.2d 558).

The Supreme Court granted the defendants' application to preclude the plaintiff from producing any expert testimony based on the plaintiff's failure to comply with CPLR 3101(d)(1)(i) until the eve of trial, and until after the defendants' in limine application had been made.   The Supreme Court has broad discretion in this matter, which involves both supervision of pretrial disclosure and management of its own trial calendar (see, e.g., Marra v. Hensonville Frozen Food Lockers, 189 A.D.2d 1004, 592 N.Y.S.2d 525).   The Supreme Court, in its decision, stated that an attorney who was “of counsel” for the plaintiff, during the course of a previous appearance, had advised that “expert witness disclosure had been completed”.   The plaintiff points to nothing in the record to contradict this, or any of the other findings contained in the Supreme Court's decision.   Under all the circumstances, we conclude that the Supreme Court did not improvidently exercise its discretion (see, e.g., Interfilm Inc. v. Advanced Exhibition Corp., 249 A.D.2d 242, 672 N.Y.S.2d 309;  Lyall v. City of New York, 228 A.D.2d 566, 645 N.Y.S.2d 34;   Vigilant Ins. Co. v. Barnes, 199 A.D.2d 257, 604 N.Y.S.2d 248).

MEMORANDUM BY THE COURT.

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