Tan Holding Corp. v. Bahra Group, Inc.

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered November 17, 2006, which, to the extent appealed from, denied the motion of plaintiff insofar as it sought leave to call Tony Canale, EE. as an expert witness and granted the cross motion of defendants to the extent of precluding plaintiff from calling Canale, unanimously reversed, on the law and the facts, without costs, plaintiffs motion granted insofar as to permit it to call Canale as an expert witness, and the cross motion denied. After learning of his liability expert’s health problems, plaintiffs attorney served notice of a new expert, Tony Canale, EE., of Mueser Rutledge, which defendants rejected as untimely. Subsequently, plaintiff, after retaining new counsel, moved for permission to permit Canale to testify as an expert on its behalf. The motion should have been granted. Flaintiff’s failure to timely comply with the notice requirements of CFLR 3101 (d) (1) was neither willful nor prejudicial (see Colome v Grand Concourse 2075, 302 AD2d 251 [2003]). Concur—Tom, J.E, Andrias, Sullivan, Williams and Gonzalez, JJ.