COLOME v. GRAND CONCOURSE 2075 LLC

The motion court properly exercised its discretion in declining to preclude plaintiffs from offering testimony of a liability expert, despite a delay in providing expert disclosure. The record amply demonstrates that plaintiffs' failure to timely comply with the notice requirements of CPLR 3101(d)(1) was not willful and was not prejudicial (see Flour City Architectural Metals v. Sky-Lift Corp., 242 A.D.2d 471), particularly after the motion court adjourned the trial for one month to give defendants the opportunity to retain their own expert (see Gallo v. Linkow, 255 A.D.2d 113, 117).

Appellants' contention that sanctions should be imposed pursuant to CPLR 3126 for plaintiffs' failure to timely disclose a videotape prepared by their liability expert, is not properly before us, such relief not having been sought in the motion court. Were we to review the contention, however, we would find it to be without merit inasmuch as the record is devoid of evidence demonstrating that plaintiffs' delayed compliance with any discovery orders was willful, contumacious or due to bad faith (see Corner Realty 30/7, Inc. v. Bernstein Mgt. Corp., 249 A.D.2d 191, 193).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.