Opinion
June 17, 1996
Appeal from the Supreme Court, Queens County (Price, J.).
Ordered that the cross appeal is dismissed, for failure to perfect the same in accordance with the rules of this Court (see, 22 NYCRR 670.8 [c], [e]); and it is further,
Ordered that the judgment is reversed, on the facts and as a matter of discretion, with costs, and a new trial is granted on the issue of damages only, unless within 30 days after service upon him of a copy of this decision and order, with notice of entry, the plaintiff Bruce A. Lyall shall serve and file in the office of the clerk of the Supreme Court, Queens County, a written stipulation consenting to reduce the verdict as to damages for past pain and suffering from the sum of $400,000 to the sum of $300,000 and for future pain and suffering from the sum of $600,000 to $100,000, and to the entry of an appropriate amended judgment in his favor in the principal sum of $400,000; in the event that the plaintiff Bruce A. Lyall so stipulates, then the judgment, as so reduced and amended, is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for entry of an appropriate amended judgment accordingly.
The plaintiff Bruce Lyall, a firefighter for the defendant City of New York, commenced this personal injury action against the defendant seeking damages for second and third degree burn injuries sustained when, in the process of extinguishing a blaze in a building located in Queens, scalding water and embers came in contact with his knees and right shin. This action is based on the alleged negligence of the defendant in supplying Bruce Lyall with an inadequate uniform. There is conflicting evidence concerning whether the plaintiff's uniform was adequate and whether more protective firefighting equipment being used by other Fire Departments across the country should have been provided by the defendant. However, reviewing the record in a light most favorable to the plaintiff, the jury verdict on the issue of liability is supported by sufficient evidence (see, Nicastro v. Park, 113 A.D.2d 129; O'Boyle v. Avis Rent-A-Car Sys., 78 A.D.2d 431).
The Supreme Court providently exercised its discretion in precluding the defendant from utilizing the expert testimony of its fact witness William Jones while refusing to preclude the testimony of the plaintiff's expert witness John O'Rourke, both of whom were retired Fire Department officials subject to conflict of interest disqualification (see, N.Y. City Charter § 2604 [d]). The defendant failed to timely disclose the name of its expert as required by CPLR 3101 (d) (1) (i) and failed to provide an adequate explanation for this failure until the eve of trial, seven years after the plaintiffs' demand. In addition, the defendant failed to establish good cause for its inordinate delay in seeking to disqualify the plaintiff's expert witness (see, Harnett v. Long Is. Jewish-Hillside Med. Ctr., 215 A.D.2d 726; Quinn v. Artcraft Constr., 203 A.D.2d 444; Vigilant Ins. Co. v Barnes, 199 A.D.2d 257).
We find, however, that the award for damages was excessive to the extent indicated herein, in that it deviates materially from what would be reasonable compensation (CPLR 5501 [c]).
The defendant's remaining contention is without merit. Bracken, J.P., O'Brien, Joy and Goldstein, JJ., concur.