FAVA v. CITY OF NEW YORK

ORDERED that the order is affirmed insofar as appealed from, with costs.

The Supreme Court providently exercised its discretion in granting that branch of the plaintiffs' motion which was to preclude the appellants from producing their expert witness, Norman S. Marcus, P.E., at trial on the ground that they were prejudiced by the appellants' failure to comply with CPLR 3101(d)(1)(i) until the eve of trial. The appellants twice previously represented that they did not have any expert witnesses except for their examining physicians ( see Rassaei v. Kessler, 252 A.D.2d 577; Vigilant Ins. Co. v. Barnes, 199 A.D.2d 257). Furthermore, the Supreme Court had once previously adjourned the trial to accommodate the appellants' belated disclosure of another expert witness. The appellants failed to show good cause why they did not retain this expert until a few days before the adjourned trial date ( see Quinn v. Artcraft Constr., 203 A.D.2d 444).

The appellants also failed to establish that the material sought by the plaintiffs was not discoverable. The appellants failed to meet their burden of demonstrating that the written reports and records pertaining to the accident and its site were not prepared by the appellants in the regular course of business, even if made solely for the purpose of litigation ( see CPLR 3101[g]; Powell v. County of Westchester, 269 A.D.2d 378; Culbert v. City of New York, 254 A.D.2d 385; Vivitorian Corp. v. First Cent. Ins. Co., 203 A.D.2d 452, 453; Crazytown Furniture v. Brooklyn Union Gas Co., 145 A.D.2d 402).

SANTUCCI, J.P., SMITH, LUCIANO and ADAMS, JJ., concur.