Opinion
2014-02-5
Erica WINZELBERG, respondent, v. 1319 50TH STREET REALTY CORP., et al., defendants, Fimor Construction & Development Corp., et al., appellants (and third-party actions).
Litchfield Cavo LLP, New York, N.Y. (Joseph E. Boury and Beth A. Saydak of counsel), for appellants.
, J.P., MARK C. DILLON, THOMAS A. DICKERSON, and LEONARD B. AUSTIN, JJ.
In an action, inter alia, to recover damages for negligence, the defendants Fimor Construction & Development Corp. and WCH–Fimor Construction Corp. appeal from an order of the Supreme Court, Kings County (Kramer, J.), dated March 12, 2012, which denied their motion to disqualify the plaintiff's expert witness.
ORDERED that the order is affirmed, without costs or disbursements.
The appellants failed to establish a sufficient basis for disqualifying the plaintiff's expert witness. The record demonstrated that the expert was originally and continuously retained on the plaintiff's behalf, such that no confidential relationship existed between the plaintiff's expert and any defendants in this action ( see Roundpoint v. V.N.A., Inc., 207 A.D.2d 123, 621 N.Y.S.2d 161; see generally Berkowitz v. Berkowitz, 176 A.D.2d 775, 574 N.Y.S.2d 829; cf. Mancheski v. Gabelli Group Capital Partners, Inc., 22 A.D.3d 532, 534, 802 N.Y.S.2d 473; Matter of Walden Fed. Sav. & Loan Assn. v. Village of Walden, 212 A.D.2d 718, 719, 622 N.Y.S.2d 796). No other basis for finding a conflict of interest was presented. Accordingly, the appellants' motion to disqualify the plaintiff's expert witness was properly denied.