Castellani v. Bagdasarian

—Judgment unanimously reversed on the law without costs and new trial granted on liability only. Memorandum: Plaintiff commenced this action seeking damages for injuries that she sustained in a four-vehicle accident. On appeal from a judgment entered upon a jury verdict of no cause of action, plaintiff contends that Supreme Court erred in precluding expert testimony concerning the deployment of her air bag for purposes of establishing the The court did not abuse its discretion in declining to hold defendant in contempt. In her brief, plaintiff requests that we award counsel fees on this appeal. Such an application must be made to the trial court (see, Lawson v Lawson, 79 AD2d 787, 789; Roscini v Roscini, 45 AD2d 254, 257-258). (Appeal from Order of Supreme Court, Erie County, Gorski, J. — Contempt.) Present — Pigott, Jr., P. J., Hayes, Hurlbutt and Burns, JJ. 871 impact speed of her vehicle during the chain-reaction accident. We agree. Plaintiffs expert disclosure sufficiently set forth “the substance of the facts and opinions on which” the expert was expected to testify (CPLR 3101 [d] [1] [i]; see, Barrowman v Niagara Mohawk Power Corp., 252 AD2d 946, 946-947, lv denied 92 NY2d 817), and there was no “demonstrable prejudice or surprise” to defendant (Rook v 60 Key Centre, 239 AD2d 926, 927). In any event, any alleged deficiency in the disclosure or potential prejudice to defendant was obviated when defendant received full disclosure of the proposed expert testimony one week prior to the retrial, which had been ordered on an unrelated ground (see generally, Rook v 60 Key Centre, supra, at 927). Because damages were determined in a prior trial and that award has not been challenged (see, Castellani v Bagdasarian, 262 AD2d 932), we reverse the judgment and grant a new trial on liability only. We have reviewed plaintiffs remaining contentions and conclude that they are lacking in merit. (Appeal from Judgment of Supreme Court, Erie County, Whelan, J. — Negligence.) Present — Pigott, Jr., P. J., Hayes, Hurlbutt, Burns and Gorski, JJ.