Haskell v. Carlson ( 1992 )

Order unanimously reversed on the law with costs and motion granted. Memorandum: The court abused its discretion in denying defendant Hebner’s motion pursuant to CPLR 3101 (d) (1) (i) for permission to retain an accident reconstruction expert and to introduce that testimony at trial. Defendant Hebner’s attorneys were not present when the attorneys for plaintiffs and the attorneys for certain other defendants entered into a stipulation setting forth a schedule for disclosure of expert witnesses and other discovery, and plaintiffs failed to show by an affidavit of service with notice of entry that they served defendant Hebner’s attorneys with the court’s order binding the parties to that stipulation. It therefore was error to bind defendant Hebner to the terms of the stipulation and to the order. We note in addition that there was no showing of prejudice to plaintiffs or intentional or willful nondisclosure by defendant Hebner (see, Lillis v D’Souza, 174 AD2d 976, lv denied 78 NY2d 858). (Appeal from Order of Supreme Court, Chautauqua County, Ricotta, J. — Expert Witness.) Present— Green, J. P., Pine, Balio, Davis and Doerr, JJ.