30-32 W. 31st St. LLC v. Heena Hotel

30-32 W. 31st St. LLC v Heena Hotel (2021 NY Slip Op 02055) 30-32 W. 31st St. LLC v Heena Hotel 2021 NY Slip Op 02055 Decided on April 01, 2021 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: April 01, 2021 Before: Acosta, P.J., Kapnick, Webber, Kennedy, JJ. Index No. 651918/12 Appeal No. 13484-13485N Case No. 2019-5914, 2020-02931 [*1]30-32 West 31st Street LLC et al., Plaintiffs-Appellants, v Heena Hotel et al., Defendants-Respondents, Terra Nova Title & Settlement Services, Inc., et al., Defendants. Port & Sava, Lynbrook (George S. Sava of counsel), for appellants. Ruskin Moscou Faltischek, P.C., Uniondale (Michael A.H. Schoenberg of counsel), and Sherin and Lodgen, LLP, Boston MA (Edward S. Cheng of the bar of the Commonwealth of Massachusetts, admitted pro hac vice, of counsel), for respondents. Orders, Supreme Court, New York County (Joel M. Cohen, J.), entered July 12, 2019 and on or about January 9, 2020, which, respectively, to the extent appealed from as limited by the briefs, granted defendants Heena Hotel LLC, Nayan Patel, and NCBL NY, LLC's motion to strike the report and trial testimony of plaintiffs' expert, and denied plaintiffs' motion for summary judgment and defendants' motion for summary judgment except as to the accounting cause of action, unanimously affirmed, without costs. The court providently struck plaintiffs' expert disclosure, which failed to disclose the substance of the facts and opinions on which the expert was expected to testify (see CPLR 3101[d][1]; Rules of the Commercial Division of the Supreme Court ([22 NYCRR 202.70] rule 13[c]; see e.g. Carter v Isabella Geriatric Ctr., Inc., 71 AD3d 443 [1st Dept 2010]; Galaz v Sobel & Kraus, 280 AD2d 427, 428 [1st Dept 2001]). Issues of fact preclude summary dismissal of plaintiffs' constructive trust, breach of contract, and fraud claims and defendants' counterclaims. Although the absence of expert testimony supporting plaintiffs' claims may affect the weight of their proof of damages at trial, it does not warrant dismissal of those claims at this stage (see e.g. LaSalle Bank N.A. v Nomura Asset Capital Corp., 72 AD3d 409, 411 [1st Dept 2010]). We have considered the parties' remaining arguments for affirmative relief and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: April 1, 2021