M.V.B. Collision, Inc. v. Allstate Ins. Co.

187 A.D.3d 884

130 N.Y.S.3d 718 (Mem)

M.V.B. COLLISION, INC., respondent,

v.ALLSTATE INSURANCE COMPANY, appellant.

2019–06838

Index No. 11602/12

Supreme Court, Appellate Division, Second Department, New York.

Argued—September 8, 2020

October 14, 2020

Rivkin Radler LLP, Uniondale, N.Y. (Cheryl F. Korman, Henry Mascia, and J'Naia L. Boyd of counsel), for appellant.

Steven F. Goldstein, LLP, Carle Place, N.Y. (Gina M. Arnedos of counsel), for respondent.

RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for violation of General Business Law § 349, the defendant appeals from an order of the Supreme Court, Nassau County (Anthony L. Parga, J.), entered April 5, 2019. The order denied the defendant's motion to preclude the plaintiff's expert from testifying at trial or, alternatively, to compel the deposition of the plaintiff's expert.

ORDERED that the order is affirmed, with costs.

The plaintiff, which owned and operated an auto repair shop, commenced this action against the defendant insurer, inter alia, to recover damages for violation of General Business Law § 349. After the plaintiff served expert witness disclosure pursuant to CPLR 3101(d), the defendant moved to preclude the testimony of the plaintiff's expert for failure to comply with that statute or, alternatively, to compel a deposition of the plaintiff's expert. The Supreme Court denied the motion, and the defendant appeals.

Pursuant to CPLR 3101(d)(1)(i), a litigant is required to "disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert's opinion." However, "there is no requirement that the expert set forth the specific facts and opinions upon which he or she is expected to testify, but rather only the substance of those facts and opinions" ( Conway v. Elite Towing & Flatbedding Corp., 135 A.D.3d 893, 894, 22 N.Y.S.3d 911 ). "Trial courts are vested with broad discretion ‘in making determinations concerning matters of disclosure,’ including imposing a penalty on a party for its failure to comply with CPLR 3101(d)(1)(I)" ( Mazzurco v. Gordon, 173 A.D.3d 1001, 1002, 102 N.Y.S.3d 730, quoting Arpino v. F.J.F. & Sons Elec. Co., Inc., 102 A.D.3d 201, 209, 959 N.Y.S.2d 74 ).

Here, the Supreme Court providently...