Inchauspe v. Take One LLC , 28 N.Y.S.3d 606 ( 2016 )

Inchauspe v Take One LLC (2016 NY Slip Op 03082)

Inchauspe v Take One LLC

2016 NY Slip Op 03082

Decided on April 21, 2016

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 on April 21, 2016
Sweeny, J.P., Renwick, Saxe, Gische, Kahn, JJ.

892N 114275/10 491-497

[*1]Gabriel Inchauspe, et al., Plaintiffs-Respondents, ——

v

Take One LLC, Defendant-Appellant, Board of Managers of the Greenwich Street Condominium, Defendant.

Rosenberg Feldman Smith, LLP, New York (Michael H. Smith of counsel), for appellant.

Law Offices of Ronald Hollander, New York (Ronald Hollander of counsel), for respondents.

Order, Supreme Court, New York County (Anil C. Singh, J.), entered November 21, 2014, which denied defendant Take One LLC's motion to preclude plaintiffs from offering into evidence at trial any expert report or expert testimony, unanimously affirmed, without costs.

The motion court providently exercised its discretion in denying the motion to preclude, since defendant did not show that plaintiffs' delay in disclosing their expert and the expert's appraisal reports was willful or prejudicial (see Martin v Triborough Bridge & Tunnel Auth., 73 AD3d 481, 482 [1st Dept 2010], lv denied 15 NY3d 713 [2010]; Gallow v Linkow, 255 AD2d 113, 117 [1st Dept 1998]). Plaintiffs explained that while they had obtained three expert appraisal reports, the last one completed in December 2013, they had considered obtaining appraisals for additional dates, which they ultimately decided not to do. Their intent was to submit one comprehensive expert appraisal report upon its completion. Defendant makes no claim of prejudice, nor do we perceive any, given that disclosure was made more than 1½ years [*2]ago and a date for the damages trial has not been scheduled.

We have considered defendant's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 21, 2016

CLERK