FUOCO v. COUNTY OF NASSAU

Ordered that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

The Supreme Court properly determined that there were issues of fact as to whether the design, construction, and maintenance of the County-owned road proximately caused the accident and that under the circumstances of this case, the County was not entitled to qualified immunity for its highway planning decisions as a matter of law ( see, Tomassi v Union, 46 N.Y.2d 91, 97; Kiamie v Town of Huntington, 193 A.D.2d 584; Giske v State of New York, 191 A.D.2d 675; Ames v City of New York, 177 A.D.2d 528, 533; Stanford v State of New York, 167 A.D.2d 381, 382; Hearn v State of New York, 157 A.D.2d 883, 885).

The Supreme Court providently exercised its discretion in denying the County's motion to preclude the plaintiffs' expert witnesses from testifying at trial since there was no proof of intentional or willful failure to disclose and no surprise or prejudice to the County ( see, e.g., CPLR 3101 [d]; McDermott v Alvey, Inc., 198 A.D.2d 95; Marra v Hensonville Frozen Food Lockers, 189 A.D.2d 1004, 1005). Balletta, J.P., O'Brien, Santucci and Florio, JJ., concur.