Opinion
November 16, 1993
Appeal from the Supreme Court, Bronx County (Howard Silver, J.).
Plaintiff waited three years, until the eve of trial, before responding to defendant Alvey, Inc.'s demand, pursuant to CPLR 3101 (d) (1) (i), for expert witness information by disclosing the identity of its economist expert. According to plaintiff, who had previously disclosed the identities of medical and engineering experts, he had retained the services of the expert economist at least one month before the scheduled trial date, but did not immediately disclose his identity to the opposing party because of an uncertainty concerning the witness's availability to testify at trial. While other similar delays in disclosure have resulted in the preclusion of expert testimony (Hudson v Manhattan Bronx Surface Tr. Operating Auth., 188 A.D.2d 355; Corning v Carlin, 178 A.D.2d 576), we find there is no proof of intentional or willful failure to disclose, on plaintiff's part, and an absence of prejudice to the parties opposing the testimony (see, Lillis v D'Souza, 174 A.D.2d 976, lv denied 78 N.Y.2d 858). Under these circumstances, we find plaintiff's counsel's payment of a sum of $1,500 for its lack of diligence more appropriate than an order of preclusion (see, Aversa v Taubes, 194 A.D.2d 580).
Concur — Murphy, P.J., Wallach, Kupferman and Asch, JJ.