To Be Argued By:Brian J. Isaac

Bronx County Clerk's Index No. 28970/02

JltW ~ ork ~Uprtmt ((ourtAPPELLATE DIVISION - FIRST DEPARTMENT

HARRY SORIANO,Plaintiff-Appellant,

against

ROSA INOA and UBALDO INOA,WELSBACH ELECTRIC CORP. and

PETROCELLI ELECTRIC CO.,Defendants,

and

THE CITY OF NEW YORK,

Defendant-Respondent.

BRIEF FOR PLAINTIFF-APPELLANTHARRY SORIANO

BURNS & HARRIS, ESQs.Attorneys for Plaintiff-Appellant

Harry Soriano

Of Counsel:

Brian J. IsaacMichael H. Zhu

By: POLLACK, POLLACK, ISAAC & DE CiccoAppellate Counsel225 Broadway, Suite 307New York, New York 10007212-233-8100

Printed on Recycled Paper

TABLE OF CONTENTSPage

TABLE OF AUTHORITIES ii

PRELIMINARY STATEMENT 1

BRIEF SUMMARY OF ARGUMENT 1

STATEMENT OF FACTS 4

A. Background 4

B. Preclusion of Dr. Gutstein 4

C. Dr. Gutstein's Trial Testimony 5

ARGUMENT 11

THE TRIAL COURT ERRED IN PRECLUDING PLAINTIFF'STREATING PHYSICIAN FROM TESTIFYING AS TO PERMANENCYAND CAUSATION BECAUSE HE WAS NOT AN EXPERT WITNESSSUBJECT TO THE DISCLOSURE RULES OF 3101[d] 1

A. Dr. Gutstein was Plaintiff's Treating Physician ....11

B. Regarding the medical exchange rule 12

C. Plaintiff was in compliance with the rule 13

D. The Expert Witness Exchange was not Late 19

E. defendant's Special Use 42

CONCLUSION 28

PRINTING SPECIFICATIONS STATEMENT 29

i

TABLE OF AUTHORITIESSTATE CASES

Aversa v. Taubes, 194 AD2d 580 [2d Dept. 1993] 22, 27

Baez v. Pathmark, 228 AD2d 629 [2d Dept. 1996] 13

Barrowman v. Niagara Mohawk, 252 AD2d 946[4th Dept. 1998] 26

Beck v. Albany MC, 191 AD2d 854 [3d Dept. 1993] 12

Blade v. Town of North Hempstead, 277 AD2d 268[2d Dept. 2000] 20, 27

Breen v. Laric Entertainment Corp., 2 AD3d 298[1st Dept. 2003] 2,16,17

Bunch v. Dollar Budget, Inc., 12 AD3d 391[2d Dept. 2004] 26

Cela v. Goodyear Tire, 286 AD2d 640 [1st Dept. 2001] 23

Connors v. Sowa, 251 AD2d 989 [4th Dept. 1998] 14, 18

Costanza v. Gold, 12 AD3d 551 [2d Dept. 2004] 26

Cutsogeorge v. Hertz Corp., 264 AD2d 752[2d Dept. 1999] 21,27

Daniels v. Bovis Lendlease, 12 AD3d 342[2d Dept. 2004] 26

DeStefano v. Gonzalez, 38 AD2d 532 [1st Dept. 1971] 18

Dowling v. 257 Associates, 235 AD2d 293[1st Dept. 1997] 15

Eckna v. Kesselman, 11 AD3d 507 [2d Dept. 2004] 26

Ferris v. Marchese, 284 AD2d 998 [4th Dept. 2001] 26

Finger v. Brande, 306 AD2d 104 [1st Dept. 2003] 3, 18

Fishkin v. Massre, 286 AD2d 749 [2d Dept. 2001] 25

Foley v. American Independent Paper Mills, 222 AD2d 401[2d Dept. 1995] 26

ii

Frangello v. Namm, 157 AD2d 649 [2d Dept. 1990] 15

Freeman v. Kirkland, 184 AD2d 331 [1st Dept. 1992] 18

Gallo v. Linkow, 255 AD2d 113 [1st Dept. 1998] 3

Godfrey v. Dunn, 190 AD2d 896 [3d Dept. 1993] 22

Gregory v. Mulligan, 266 AD2d 344 [2d Dept. 1999] 15

Heard v. Town of Pawling, 244 AD2d 317 [2d Dept. 1997] 25

Hegler v. Lowe's, 280 AD2d 645 [2d Dept. 2001] 26

Herrera v. Persaud, 276 AD2d 304 [1st Dept. 2000] 3

Holshek v. Stokes, 122 AD2d 777 [2d Dept. 1986] 18

Hunter v. Tryzbinski, 278 AD2d 844 [4th Dept. 2000] 24

Kihl v. Pfeffer, 94 NY2d 118 [1999] 27

Kirschhoffer v. Van Dyke, 173 AD2d 7 [3d Dept. 1991] 16

Krinsky v. Rachleff, 276 AD2d 748 [2d Dept. 2000] 17

Krygier v. Airweld, Inc., 176 AD2d 700 [2d Dept. 1991] 26

Lafontant v. Hollymatic Corp., 183 AD2d 702[2d Dept. 1992] 25

Laukaitis v. Ski Stop, 223 AD2d 627 [2d Dept. 1996] 25

Lillis v. D'Souza, 174 AD2d 976 [4th Dept. 1991] 20

Lombardi v. Wlazo, 170 AD2d 653 [2d Dept. 1991] 13

Louis v. St. Francis Hospital, 10 AD3d 678[2d Dept. 2004] 26

Malanga v. NYC, 300 AD2d 549 [2d Dept. 2002] 12, 17, 24

Manoni v. Giordano, 102 AD2d 846 [2d Dept. 1984] 18

Marra v. Hensonville Frozen Food, 189 AD2d 1004[3d Dept. 1993] 21

Marshall v. 130 North Vested Road, 277 AD2d 432[2d Dept. 2000] 25, 26

iii

Mastszewska v. Golubeya, 293 AD2d 580 [2d Dept. 2002] 15

McClaine v. Rockport Mem. Hospital, 236 AD2d 864[4th Dept. 1997] 26

McCluskey v. Shapiro, 273 AD2d 284 [2d Dept. 2000] 22, 27

McCrimmon v. NYCHA, 272 AD2d 210 [1st Dept. 2000] 23

McDermott v. Alvey, Inc., 198 AD2d 95 [1st Dept. 1993] 22

McDougald v. Garber, 135 AD2d 80 [1st Dept. 1988],mod., 73 NY2d 246 [1989] 15

McLamb v. Metropolitan Suburban Bus, 139 AD2d 572[2d Dept. 1988] 17, 18

Nedell v. St. George's Golf, 203 AD2d 121[1st Dept. 1994]............................................. 26

O'Laughlin v. Delisser, 788 NYS2d 860 [2d Dept. 2005] 26

Overeem v. Neuhoff, 254 AD2d 398[2d Dept. 1998] 3, 8, 12, 17

Peck v. Tired Iron Transport, Inc., 209 AD2d 979[ th ]4 Dept. 1994 22

pierson v. Yourish, 122 AD2d 202 [2d Dept. 1986] 18

Rook v. 60 Key Center, Inc., 239 AD2d 926[ th ]4 Dept. 1997 12, 23, 24

Ruzycki v. Baker, 9 AD3d 854 [4th Dept. 2004] 24

Ryan v. NYC, 269 AD2d 170 [1st Dept. 2000] 12

Saar v. Brown, 139 Misc.2d 328[Sup. Ct. Rensselaer Co. 1988] 20, 21

Serpe v. Eyris Constr., 243 AD2d 375[1st Dept. 1997]...................................... 3, 15, 18

Sessa v. Buena Vida Constr., 789 NYS2d 918[2d Dept. 2005] 26

Shehata v. Sushiden America, 190 AD2d 620[1st Dept. 1993]............................................. 14

iv

Shopsin v. Siben & Siben, 289 AD2d 220[2d Dept. 2001] 22,27

Silverberg v. Comm. General Hospital, 736 NYS2d 758[1st Dept. 2002] 23

Stark v. Semeran, 244 AD2d 894 [4th Dept. 1997] 5, 12

Taylor v. Daniels, 244 AD2d 176 [1st Dept. 1997] 14

Vega v. LaPalorcia, 281 AD2d 623 [2d Dept. 2001] 20, 25

Weiss v. Berardi, 237 AD2d 596 [2d Dept. 1997] 25

Wylie v. Conrail, 229 AD2d 966 [4th Dept. 1996] 12

STATE STATUTESCPLR 3101 [d] passim

CPLR 3101 [d][1].................................... 2, 12, 16, 20

CPLR 3101[d] [1][i] 2,20,21,25

CPLR 3121 ..................................................... 16

STATE REGULATIONS22 NYCRR ~202 .17........................................... 2, 16

22 NYCRR ~202 .17 [h] 11, 12, 14

v

SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION: FIRST DEPARTMENT--------------------------------------XHARRY SORIANO,

Claimant-Appellant,

-against-

ROSA INOA and UBALDO INOA, WELSBACHELECTRIC CORP., and THE CITY OFNEW YORK.

Defendant-Respondent.--------------------------------------x

PRELIMINARY STATEMENT

Index No.28970/02

APPELLANT'SBRIEF

Plaintiff-appellant Harry Soriano submits this brief in

connection with the appeal he took [3-4]1 from the November 6,

2008 order of the Supreme Court, Bronx County [Schachner, J]

which denied plaintiff's motion to set aside the trial Court's

Order dated July 13, 2007 [285-287], which granted the

defendant-respondent City of New York's motion to dismiss

plaintiff's complaint based on an alleged failure of plaintiff's

medical expert to establish that the serious injuries sustained

by the plaintiff was a proximate cause of the October 3, 2002

accident.

BRIEF SUMMARY OF ARGUMENT

The trial Court erred in precluding plaintiff's treating

neurologist Dr. Hal Gutstein from testifying about permanency

1 Numbers in parentheses refer to pages of the record on appeal.

1

and causation, based on an alleged failure to timely serve an

expert witness exchange pursuant to CPLR 3101 [d][1][i].

Since Dr. Gutstein was plaintiff's treating physician [248-

249] , there was no need to serve a 3101 [d][1][i] expert

exchange. Therefore, the trial Court abused its discretion in

precluding and limiting Dr. Gutstein's testimony to what was

contained in his medical reports and medical records attached to

the expert witness exchange because CPLR !!l3101[d][1] applies

only to experts retained to give opinion testimony at trial, and

not to treating physicians or other medical providers or similar

fact witnesses whose testimony is governed by 22 NYCRR !!l202.17.

Breen v. Laric Entertainment Corp., 2 AD3d 298 [1st Dept. 2003].

Preclusion is not appropriate even where there is no formal

!!l3101[d]disclosure, because the treating physician's medical

reports and records provide the defendant with the knowledge it

needs to defend against the claim. In fact, permanency cannot

be considered an injury or condition, since it relates to the

severi ty of the brain injuries put into issue in the medical

report. Moreover, the City's claim that it was unaware of the

permanent nature of the injuries or surprised by Dr. Gutstein's

testimony on permanency and/or causation, is refuted by

plaintiff's pleadings. Where a defendant is aware of the nature

of the injuries even from other sources, preclusion is not an

appropriate remedy.

2

In addition, the trial court erred in precluding the

plaintiff's treating physicians from providing testimony with

respect to the cause of the plaintiff's injuries. Contrary to

the trial Court's determination, a treating physician may give

an expert opinion on permanency and proximate cause without

prior notice pursuant to CPLR ~3101 Ed] Finger v. Brande, 306

AD2d 104 [1st Dept. 2003] i Serpe v. Eyris Constr., 243 AD2d 375

[1st Dept. 1997] i Overeem v. Neuhoff, 254 AD2d 398, 400 [2d Dept.

1998] .

Alternatively, even if Dr. Gutstein was not plaintiff's

treating physician, non-compliance with an order regarding

expert disclosure is not sufficient to justify preclusion in the

absence of intentional conduct and prejudice. That is why this

Herrera v. Persaud, 276 AD2d

Court has not hesitated to hold that preclusion based on a

delayed response to a demand for expert disclosure does not

warrant preclusion where the delay was inadvertent and caused no

prejudice to the demanding party.

304 [1st Dept. 2000]

Preclusion of expert testimony is an improvident exercise

of discretion in the absence of willfulness or prejudice,

especially where the court has the option of ordering a lesser

sanction and/or an adjournment to provide another opportunity to

comply with a disclosure order.

[1st Dept. 1998].

3

Gallo v. Linkow, 255 AD2d 113

STATEMENT OF FACTS2

A. BackgroundOn October 3, 2002, plaintiff, Harry Soriano was a

pedestrian, walking along Grand Concourse near East Tremont

Avenue in the Bronx. [148-149] When the pedestrian traffic

signal changed to "Walk", Mr. Soriano took two steps into the

crosswalk and was suddenly struck by a vehicle operated by

defendant Ubaldo Inoa3• [152] Mr. Soriano then lost

consciousness and the next thing he remembered was waking up in

the hospital at St. Barnabus.

B. Preclusion of Dr. Gutstein[152-153]

Prior to plaintiff calling his treating neurologist, Dr.

Gutstein, defendant City of New York moved to preclude Dr.

Gutstein on the grounds that the CPLR 3101 [d] expert witness

exchange was served late. [208] The expert witness exchanged

was served on June 19, 2007, 21 days before trial. [319]

Plaintiff's counsel opposed the motion and argued that the

3101 [d] exchange was not late, as it was served three weeks

before trial. More importantly, Dr. Gutstein was not an expert

witness, but was plaintiff's treating physician,

there was no need to serve an expert witness exchange.

therefore,

The City

2 Since the issues in this appeal involve the preclusion of plaintiff'smedical expert, we will not discuss any of the facts or evidence produces attrial relating to the defendants' liability.

3 During trial, plaintiff settled his claims against the Inoa defendantswithin their policy limits of $25,000. [205-207]

4

of New York was served with a duly executed HIPPA compliant

written authorization for Dr. Gutstein's medical records on

August 6, 2003. Thus, there was no prejudice to the defendant.

The City argued that Dr. Gutstein's medical report and

records said nothing about permanency or causation. Plaintiff,

citing to Stark v. Semeran, 244 AD2d 894 [4th Dept. 1997],

responded that as a treating physician, Dr. Gutstein could

testify about permanency and causation, even if the doctor said

nothing in his medical reports about these topics. [211-212]

The trial Court denied defendant's application to preclude

Dr. Gutstein entirely, but held that his testimony would be

limited to the subjects disclosed in the 3101[d] expert witness

exchange and the medical records attached thereto. Thus, Dr.

[221-222,236]

Gutstein was not permitted to testify as to the permanency of

Mr. Sorinao injuries or causation.

c. Dr. Gutstein's Trial TestimonyDr. Gutstein testified that he was Mr. Soriano's treating

neurologist and Dr. Velazquez was his associate. [248] In

total, Mr. Soriano treated with either Dr. Gutstein or Dr.

Velazquez about five times and carne in for about 48 physical

therapy visits to Dr. Gutstein's office. [249]

Dr. Gutstein testified that Mr. Soriano carne in for his

first visit on November 1, 2002, at which time, he had multiple

complaints of forgetfulness, getting lost,

5

losing balance,

headaches, difficulty with coordination, dropping food,

difficulty going up and down stairs, neck pain, back pain,

nightmares, foot numbness and hip, low back and neck pain.

[250]

Dr. Gutstein also explained that upon his discharge from

St. Barnabus, the hospital discharge summary noted that he was

hit by a motor vehicle and suffered a closed head injury with

subarachnoid hemorrhage. An old brain injury was also seen and

he received stitches over the left side of his face. [250]

After taking his medical history, Dr. Gutstein performed a

physical examination, which consisted of a general medical

examination of the heart, lungs, "things of that nature and

neurological examination." [251] As a result of the

examination, Dr. Gutstein formulated an impression - "[t]hat he

had a closed head injury with a brain contusion, brain

contusion, cervical radiculopathy, lumbar radiculopathy and

there was a question of seizures". [251]

These seizures were related to his complaints of "episodes

of personality changes, outbursts, confusion, concentration

difficulties in the setting of a head injury of this type,

seizures is a differential diagnosis, a person can have mini-

electrical discharges and that could be a basis of." [252]

After discussing Mr. Sorinao's cervical and lumbar

radiculopathy conditions, Dr. Gutstein discussed his treatment

6

plan, which included physical therapy, diagnostic testing and

medication. [253]

Plaintiff's counsel then attempted to ask Dr. Gutstein

whether he had any opinions as to what was the cause of the

injuries to plaintiff's nerves. Defense counsel's objection was

sustained by the trial Court. [252-253]

Dr. Gutstein then offered testimony regarding his findings

on an MRI taken of Mr. Soriano's brain, on November 22, 2002,

which showed findings of abnormalities of vascular bases in the

brain and scar tissue [gliosis], but it was not clear what this

vascular issue was. [257] This scar tissue was permanent.

[265] Therefore, Dr. Gutstein recommended further diagnostic

testing - a magnetic resonance angiography [MRA] [257]

However, counsel's follow up question as to how the scar

tissue related to Mr. Soriano's brain injury [258], as to the

permanency of the brain damage in the areas where scar tissue

was found [259], and as to causation of the brain injury, were

all objected to by defense counsel as beyond the scope of the

doctor's medical report, and sustained by the trial Court.

[258-260]

Dr. Gutstein then testified about Mr. Soriano's next visit

on November 27, 2002, during which the doctor examined his

cranial nerves and did a motor, sensory and reflex exams. [261]

These objective tests revealed that Mr. Soriano had a decreased

7

sensation in the pin wheel along the left arm, there was +3

tenderness and spasm with 75% limitation of motion of the

cervical spine, and had articular facette tenderness bilaterally

of the mid-cervical spine.

MRI of the neck and back.

The neurologist then prescribed an

[262-263]

The cervical MRI showed herniations at C5-C6 and C6-C7 and

the lumbar MRI showed posterior herniation at L4-L5, L5-S1, with

anular tearing and edema, with loss of fluid within the disc

material itself. [264]

The next time he saw the patient was on March 7, 2003. He

was noted to be symptomatic involving the neck and back, with

limitation of

leg. At that

motion;

point,

trouble walking with a limp on the left

it was decided that no further medical

treatment would be helpful at that point. [265-266]

When plaintiff's counsel tried to elicit an opinion on

prognosis and permanency, defense counsel's objection was

sustained, as beyond the scope of his report. [266-267]

The trial Court repeated its preclusion order, holding that

the Court was limiting Dr. Gutstein based on the late submission

and the late 3101[d] exchange without good cause. [269-270] In

response, plaintiff's counsel cited to a Second Department

decision, Overeem v. Neuhoff, 254 AD2d 398 [2d Dept. 1998],

which held that a treating physician is not an expert and not

subject to the disclosure rules under CPLR 3101 [d], and can

8

testify as to causation and permanency even though these

subjects were not discussed in the treating physician's medical

reports. [270-271]

Plaintiff's counsel also pointed out that medical

authorizations were given to the City several years ago and if

the City could not obtain these records, plaintiff should not be

blamed for this. [271]

Despite this cogent argument, the trial Court still adhered

to its initial determination and sustained the City's

objections. [272]

After plaintiff rested, defendant City of New York moved to

dismiss the action for failure to establish a prima case on

liability and damages. The latter motion was based on the

deficiencies in Dr. Gutstein's testimony. Plaintiff argued that

in addition to Dr. Gutstein's testimony, other evidence in the

case help establish causation, including the discharge summary,

which diagnosed a contusion with subarachnoid hemorrhage, which

is direct evidence of an acute injury caused by the October 3,

2002 accident. The discharge summary also distinguished an old

brain injury from a new brain injury caused by this accident.

In addition, the impression of a closed head injury with a brain

contusion established causation.

9

[283-284]

After argument, the trial Court ruled that because Dr.

Gutstein's testimony did not include causation, the plaintiff's

action is dismissed. [285, 297]

Thereafter, plaintiff's made a post-trial motion to set

aside the Court's dismissal of the plaintiff's case at the close

of plaintiff's proof. [291-296]

The trial Court held that Dr. Gutstein was an expert

witness, rather than plaintiff's treating physician - "the court

considered Dr. Gutstein an expert medical witness since a CPLR

3101 [d] expert disclosure for Dr. Gutstein was served by

plaintiff". The trial Court also considered that plaintiff's

counsel never offered "good cause" for the late disclosure even

though the expert witness disclosure was served three weeks

before trial. The trial Court also noted that the medical

authorizations served by plaintiff's counsel in 2003, or four

years before trial, for Dr. Gutstein's medical records, were not

HIPPA compliant, despite the City's utter failure to advise the

plaintiff of this until the eve of trial. [13]

As a result, "Plaintiff's failure to comply with the

mandates of CPLR 3101 [d], without good cause, prejudiced the

City in its defense of this action. Accordingly, plaintiff's

motion to set aside the trial court's order dated July 13, 2007,

dismissing plaintiff's complaint is denied." [14]

10

ARGUMENTTHE TRIAL COURT ERRED IN PRECLUDING PLAINTIFF'S

TREATING PHYSICIAN FROM TESTIFYING AS TO PERMANENCYAND CAUSATION BECAUSE HE WAS NOT AN EXPERT WITNESS

SUBJECT TO THE DISCLOSURE RULES OF 3101[d]A. Dr. Gutstein was Plaintiff's Treating Physician

The trial Court erred in determining that Dr. Gutstein was

not the plaintiff's treating neurologist. Dr. Gustein's direct

testimony clearly establishes that he was plaintiff's treating

neurologist:

Q.

A.

Q.

Now did you have an opportunity to treat HarrySoriano following his accident in October of2002?

Yes.

* * *

And do you know approximate how many times youand Dr. Velasquez saw this patient?

A. He was seen by us five times and he had about 48physical therapy treatments which were also donein my office at that time.

[248-249] Thus, the trial Court was wrong in concluding that

Dr. Gutstein was an expert witness and subject to the rules of

expert witness disclosure under CPLR 3101[d], and the order

appealed from should be reversed as a matter of law.

Since Dr. Gutstein was plaintiff's treating physician, he

was subject to the medical exchange rule under 22 NYCRR

~202.17[h].

11

B. Regarding the medical exchange rule22 NYCRR ~202.17[h] provides in part:

Unless an order to the contrary is made or unless thejudge presiding at the trial in the interests of justiceand upon a showing of good cause shall hold otherwise,the party seeking to recover damages shall be precludedat the trial from offering in evidence any part of thehospital records and all other records ...not madeavailable pursuant to this Rule, and no party shall bepermitted to offer any evidence of injuries orconditions not set forth or put in issue in therespective medical reports previously exchanged, norwill the court hear the testimony of any treating orexamining medical providers whose medical reports havenot been served as provided by this Rule.

It is now firmly established that CPLR ~3101 [d][1] applies

only to experts retained to give opinion testimony at trial, and

not to treating physicians or other medical providers or similar

fact witnesses whose testimony is governed by 22 NYCRR ~202.17.

Such health care providers may testify provided their reports

are exchanged [see, Malanga v. NYC, 300 AD2d 549 [2d Dept.

2002] ; Ryan v. NYC, 269 AD2d 170 [1st Dept. 2000] ; Overeem v.

Neuhoff, 254 AD2d 398 [2d Dept. 1998] ; Stark v. Semeran, 244

AD2d 894 [4th Dept. 1997] ; Rook v. 60 Key Center, 239 AD2d 926

[4th Dept. 1997] ; Wylie v. Conrail, 229 AD2d 966 [4th Dept. 1996] ;

Beck v. Albany MC, 191 AD2d 854 [3d Dept. 1993]. Preclusion is

not appropriate even where there is no formal ~3101 [d]

disclosure, because the reports provide the defendant with the

knowledge it needs to defend against the claim.

12

c. Plaintiff was in compliance with the ruleAt trial, it was establ ished that Dr. Gutstein was one of

plaintiff's treating neurologists. Dr. Gutstein testified that

he examined and treated the plaintiff on several occasions and

that Dr. Velazquez was his associate.

off on medical reports and records.

Both physicians signed

[211, 248-249, 308-310]

Plaintiff served a written authorization for Dr. Gutstein's

office records in August, 2003, four years before trial. [211]

Thus, the rule was complied with when plaintiff served Dr.

Gutstein's November 1, 2002 medical report along with certain

medical reports.

This report thoroughly set forth Dr. Gutstein's findings,

diagnoses, and treatment plan.

There is no question that plaintiff provided not only a

narrative medical report but also the physician's actual medical

records as well as authorizations for same. Only the

authorizations were actually required pursuant to plaintiff's

discovery obligations. [See, Lombardi v. Wlazo, 170 AD2d 653

[2d Dept. 1991]; see also, Baez v. Pathmark, 228 AD2d 629 [2d

Dept. 1996]] But defendant contends that there is nothing in

the report about permanency and causation, and thus, the

expert' s testimony should be precluded and limited to what the

report does say.

13

Actually, the records, when viewed together and

holistically, fully comply with the statute and the case law

interpreting same.

22 NYCRR ~202 .17[h] does not preclude a medical witness

from "detailing the functional consequences of previously

reported injuries or conditions"; where the witness "clearly was

not advancing any new injury or condition, but instead merely

relating a conclusion that could have been reasonably

anticipated from the injuries that were fully disclosed to the

defendant", preclusion is inappropriate [Taylor v. Daniels, 244

AD2d 176 [1st Dept. 1997], citing Shehata v. Sushiden America,

190 AD2d 620 [1st Dept. 1993]].

Here, defendant's claim that it was unaware of the

permanent nature of the injuries is refuted by plaintiff's

pleadings. Where a defendant is aware of the nature of the

injuries even from other sources, preclusion is not an

appropriate remedy. In Connors v. Sowa, 251 AD2d 989 [4th Dept.

1998], for example, the Fourth Department found that physician

testimony was properly allowed in the interests of justice where

defendants were "provided with the report of plaintiff's

treating physician to the no fault insurance carrier as well as

his medical records and the records of all other physicians upon

which he relied", "conducted two physical examinations of

plaintiffs and did not complain until trial about the failure to

14

provide the report." See also, Serpe v. Eyris Constr., 243 AD2d

375 [1st Dept. 1997] [Future damage award based on plaintiff's

medical testimony not vacated where permanence evaluation was

not included in exchanged medical reports as permanence was

pleaded and defense counsel failed to use additional

authorizations or have plaintiff examined] i Dowling v. 257

Associates, 235 AD2d 293 [1st Dept. 1997] ["The trial court's

admission of X-rays for which plaintiffs had not provided

defendant with authorizations was a proper exercise of

discretion_where defendant received a doctor's report that

explicitly identified those X-rays in the course of interpreting

them, plaintiff gave her doctor authorization to make her entire

file, including the X-rays, available to defendant, and

defendant never requested either an authorization from plaintiff

nor the X-rays from the doctor"] .

Preclusion is inappropriate where defendant has overall

knowledge of the claims, even where there is a technical

violation of the statute [Frangello v. Namm, 157 AD2d 649 [2d

Dept. 1990] i see generally, McDougald v. Garber, 135 AD2d 80 [1st

Dept. 1988], mod., 73 NY2d 246 [1989]]. Preclusion is justified

only where the withheld information gives rise to surprise in

the adversary [see, Mastszewska v. Golubeya, 293 AD2d 580 [2d

Dept. 2002] i Gregory v. Mulligan, 266 AD2d 344 [2d Dept. 1999] i

15

see generally, Kirschhoffer v. Van Dyke, 173 AD2d 7 [3d Dept.

1991] .

Here, the experts' testimony accorded with the report and

records. There is no requirement that a plaintiff exchange a

narrative report encompassing all the visits, prognoses,

causation and permanency.

as we have shown.

The rule is precisely the opposite,

The trial Court also erred in sustaining defendant's

objections as to Dr. Gutstein's testimony, holding that because

Dr. Gutstein did not address the issue of prognosis or causation

in the medical report and records, he should not be permitted to

testify as to whether plaintiff had sustained a permanent injury

and causation [253, 259, 260, 263, 266] i this contention runs

afoul of black letter decisional law.

In Breen, the trial Court precluded plaintiff's medical

witness and dismissed plaintiff's action for failure to serve a

CPLR 3101[d] expert witness exchange. This Court reversed,

reinstated the complaint and ordered a new trial, holding that:

Where, as here, a plaintiff's intended expert medicalwitness is a treating physician whose records andreports have been fully disclosed pursuant to CPLR 3121and 22 NYCRR 202.17, a failure to serve a CPLR 3101(d)notice regarding that doctor does not warrant preclusionof that expert's testimony on causation, since thedefendant has sufficient notice of the proposedtestimony to negate any claim of surprise or prejudice(cits). We also note that defendants did not move tocompel compliance with CPLR 3101(d) until after the juryhad been selected (cit), and that failure to comply with

16

CPLR 3101(d) is not a basis for dismissal, but, at most,preclusion of the expert's testimony at trial (cits) .Although the trial court stated that the physician hadnot been scheduled to testify, plaintiff's counselasserted, on the record, that the witness would testify.

Even if there had been some justification forprecluding plaintiff's physician from testifying,dismissal of the complaint would have been improper,since causation in this case could be proved withoutexpert testimony, in that the results of the allegedassault and battery are within the experience andobservation of an ordinary layperson.

2 AD3d 299-300.

In Malanga, 300 AD2d 549, supra, the Second Department

stated: "The trial court erred in precluding the plaintiff's

treating physicians from providing testimony with respect to the

cause of the plaintiff's injuries. Contrary to the trial

court's determination, a treating physician may give an expert

opinion without prior notice pursuant to CPLR ~3101 [d]" See

also, Krinsky v. Rachleff, 276 AD2d 748 [2d Dept. 2000].

In Overeem v. Neuhoff, 254 AD2d 398, 400 [2d Dept. 1998],

the Second Department found that it was improper to preclude

expert testimony on causation of injuries based on plaintiff's

failure to identify the treating physician in discovery where

his medical reports had been exchanged, even though the

physician "expressed no opinion regarding causation in the

previously exchanged medical reports." This rule is one of long

standing. See, McLamb v. Metropolitan Suburban Bus, 139 AD2d

17

572 [2d Dept. 1988]; pierson v. Yourish, 122 AD2d 202 [2d Dept.

1986]; DeStefano v. Gonzalez, 38 AD2d 532 [1st Dept. 1971].

_H_o_l_s_h_e_k_v_._S_t_o_k_e_s,122 AD2d 777-8Similarly, in

1986], the Second Department declared: "Finally,

[2d Dept.

while the

doctor's report did not state that the injuries were permanent,

it did not foreclose this possibility; therefore, defendant

cannot claim surprise or prejudice by this testimony [cits.].

Moreover, permanency cannot be considered an injury or

condition, rather it relates to the severity of the knee

injuries put into issue in the medical report."

Here, in contrast to Manoni v. Giordano, 102 AD2d 846 [2d

Dept. 1984], there is no hint that defendant was unaware of the

nature of plaintiff's claims.

Moreover, contrary to the trial Court's holding, a treating

physician may testify as to causation and permanency even where

no opinion in these regards was to be found in exchanged reports

[Finger v. Brande, 306 AD2d 104 [1st Dept. 2003]] where there is

proof of permanence in the bill of particulars and where

defendant would not be surprised by the testimony [Serpe v.

Eyris, supra; Connors v. Sowa, supra; Freeman v. Kirkland, 184

AD2d331 [1st Dept. 1992]]

In McLamb v. Metropolitan Suburban Bus, supra, plaintiff's

expert testified that he was certain that plaintiff's injuries

were caused by the automobile accident. One of defendant's

18

experts, Dr. Friedman, testified that plaintiff's injury was

congeni tal, in contradiction of his two prior medical reports

which blamed it on trauma. Another of defendant's experts

concurred. Plaintiff claimed that the testimony "violated the

medical exchange rule", but the Second Department found that

both doctors were properly allowed to testify because, as the

trial court noted, "the issue of causation was implicit on the

question of damages" when, on plaintiff's hospitalization after

the accident, "diaphragmatic rupture" was allegedly ruled out,

only to be confirmed on his hospitalization 7 months later, with

causation in question on the hospital record; moreover, "the

plaintiff's counsel cross-questioned Dr. Friedman at length

about the discrepancy between his opinion testimony and the

opinion expressed in the previous medical reports."

D. The Expert Witness Exchange was not LateWhile we believe that a CPLR 3101[d] expert witness

exchange was not necessary in this case because Dr. Gutstein was

a treating physician, and one was served by plaintiff's counsel

in this case out of an over abundance of caution, to the extent

that one was required, Dr. Gutstein should not have been

precluded under the circumstances presented here.

We believe that the trial Court abused its discretion and

was simply wrong in asserting that the expert witness exchange

that was served 21 days prior to trial was late and that

19

to overcome theplaintiff had to establish "good cause"

lateness.

Absent willful conduct, preclusion is not warranted, as is

clear from the fact that CPLR ~3101 [d][1] sets forth no deadline

for expert disclosure, which may be served on the eve of trial

or even during trial. See, Saar v. Brown, 139 Misc.2d 328 [Sup.

Ct. Rensselaer Co. 1988] (Preclusion motion based on eve of

trial expert disclosure denied since statute provides no

specific time for compliance); see also, Lillis v. D'Souza, 174

AD2d 976 [4th Dept. 1991] (Denial of preclusion motion proper

though expert was retained only one week before trial and

disclosure was first provided on second day of trial, as "CPLR

~3101 Cd][1][i] does not require a party to retain an expert at

any specific time nor does it mandate that a party be precluded

from proffering expert testimony merely because of non-

compliance with the statute"); Vega v. LaPalorcia, 281 AD2d 623

[2d Dept. 2001] (Lower court's grant of preclusion reversed even

where expert was retained only weeks before scheduled trial date

and disclosure was made thereafter); Blade v. Town of North

Hempstead, 277 AD2d 268 [2d Dept. 2000] [Noncompliance with CPLR

3101(d) does not mandate preclusion].

There was clearly no attempt to hold back discovery to

secure a tactical advantage. Medical authorizations were served

20

on the defendants during pre trial discovery, over four years

before the trial in this case.

In Saar v. Brown, supra, the court noted that "The statute

itself and the legislative history provide no guidelines as to

the timing of such discovery but the statute makes allowance for

a last minute designation".

In a case similar to the instant action, Marra v.

Hensonville Frozen Food, 189 AD2d 1004 [3d Dept. 1993] ,

plaintiff demanded expert disclosure in April 1990 and although

the expert was retained earlier, his name and the subject of his

testimony were not disclosed until ten days before trial.

Plaintiff sought preclusion of the expert testimony; defendant

explained that he was not apprised of the expert's opinion until

just before disclosure was made. The lower court found that

there was no intentional failure to disclose earlier and no

prejudice and therefore denied plaintiff's motion. The denial

was affirmed by the Appellate Division. Similarly, in the

instant action, plaintiffs were not advised of the expert's

opinion until just before disclosure was made.

Decisional law from other appellate courts, including this

court, is in accord. See, Cutsogeorge v. Hertz Corp., 264 AD2d

752 [2d Dept. 1999] ("Supreme Court erred in finding that the

plaintiff was required to serve the expert witness notices at

least 30 days before trial pursuant to CPLR 3101 (d)(1)(i)";

21

grant of preclusion motion reversed where expert response was

served on the eve of liability trial given lack of willfulness

and prejudice) i McDermott v. Alvey, Inc., 198 AD2d 95 [1st Dept.

1993] (Grant of motion to preclude based on eve of trial expert

disclosure modified on appeal and monetary fine substituted,

given lack of prejudice or evidence of willfulness) i Peck v.

Tired Iron Transport, Inc., 209 AD2d 979 [4th Dept. 1994] (No

abuse of discretion in allowing expert to testify where expert

report was first provided after opening statements) i Godfrey v.

Dunn, 190 AD2d 896 [3d Dept. 1993] (Preclusion denied where

expert disclosure was first made only 17 days prior to trial) i

Aversa v. Taubes, 194 AD2d 580 [2d Dept. 1993] (Monetary

penalty, not preclusion, was proper penalty for eve of trial

expert disclosure) i McCluskey v. Shapiro, 273 AD2d 284 [2d Dept.

2000] (Lower court properly denied motion to preclude even

though expert notice was served late since belated disclosure

was neither willful nor intentional) .

Where there is no evidence that the delay in retaining an

expert witness and in serving the expert notice was willful or

intentional, any potential prejudice to defendants can be

alleviated by granting an adjournment. See, Shopsin v. Siben &

Siben, 289 AD2d 220 [2d Dept. 2001] (Lower court's preclusion of

plaintiff's experts reversed despite delay in disclosure as

there was no evidence that delay was intentional or willful i

22

proper remedy was to grant adjournment to alleviate any

potential prejudice to defendant) .

In fact, this Court has specifically held that preclusion

of expert testimony is inappropriate even where plaintiff could

be found to be guilty of intentionally "withholding their

engineer's report", and that the dilatory party should be given

one final chance to comply by granting the preclusion motion

conditionally (Cela v. Goodyear Tire, 286 AD2d 640 [1st Dept.

2001] .

As noted in Silverberg v. Comm. General Hospital, 736 NYS2d

758 [1st Dept. 2002], "Before imposing the drastic remedy of

preclusion, the court must consider the reasons for the delay

and whether or not the failure to disclose was intentional."

See also, Rook v. 60 Key Center, Inc., 239 AD2d 926 [4th Dept.

1997] . Certainly, appellate precedent on point does not approve

of granting preclusion where the failure to retain an expert

earlier is reasonable. See, McCrimmon v. NYCHA,272 AD2d 210

[1st Dept. 2000]

There was certainly no intent to conceal the identity of

plaintiffs' expert, and good cause for the delay has been shown.

Furthermore, any prejudice was dissipated because the defendants

had been served with a copy of Dr. Gutstein's reports and

medical records, along with the 3101[d] disclosure previously.

Defense counsel's argument that they had no opportunity to

23

obtain their own copy of the medical records because there was a

problem with the authorizations is without merit. Those medical

authorizations were served in 2003, over four years before

trial. The fact that they could not obtain those records in all

that time should not work to their benefit. Moreover, the fact

that the City wrote a subsequent letter is of no consequence

since the City's attorney admitted that there was no follow up

and the City never made a motion to strike the note of issue or

freshwith ato providedemand plaintiffa motion to

authorization.

Given that the disclosure was served three weeks before

trial, the lack of evidence of willfulness, and the lack of

actual prejudice to defendants, we believe the trial Court

abused its discretion in precluding Dr. Gutstein in testifying

about permanency and proximate cause.

In addition, all the Appellate Divisions have held that

prior pleadings, discovery responses and reports can serve to

apprise the objecting party of the nature of an expert's

proposed testimony, and justify the delayed filing of a CPLR

~3101[d] response. See, Ruzycki v. Baker, 9 AD3d 854 [4th Dept.

2004] i Malanga v. NYC, 300 AD2d 549 [2d Dept. 2002] i Hunter v.

Tryzbinski, 278 AD2d 844 [4th Dept. 2000] i Rook v. 60 Key Centre,

Inc., 239 AD2d 926 [4th Dept. 1997]. Moreover, the Second

Department has held that a party's "failure to strictly comply

24

with CPLR ~3101 [d] [1] [i]" should not warrant preclusion where

the opposing party "could not claim surprise or prejudice as a

result of the challenged testimony".

AD2d 749 [2d Dept. 2001].

Fishkin v. Massre, 286

Belated expert exchanges do not warrant preclusion where

they set forth the proposed testimony in full and there is no

prejudice, in the absence of willful conduct [Vega v.

LaPaloricia, 281 AD2d 623 [2d Dept. 2001]]. Experts may testify

as to matters not within the pleadings absent surprise to the

opponent [Marshall v. 130 North Vested Road, 277 AD2d 432 [2d

Dept. 2000]]. Even responses that are inadequate in some

respects do not warrant preclusion absent proof that information

was intentionally withheld [Heard v. Town of Pawling, 244 AD2d

317 [2d Dept. 1997]]. The proper remedy is to furnish a

"further response" to the demand [Lafontant v. Hollymatic Corp.,

183 AD2d 702 [2d Dept. 1992]].

The statute does not require plaintiff to provide

evidentiary detail, but only to state in reasonable detail the

nature of the expert's testimony. Where defendant is aware of

same, preclusion is inappropriate [Weiss v. Berardi, 237 AD2d

596 [2d Dept. 1997] ; Laukaitis v. Ski Stop, 223 AD2d 627 [2d

Dept. 1996]]. The statute sets forth "minimum" requirements,

and an order requiring "any further disclosure [may] improperly

force the plaintiff to reveal the facts upon which her experts

25

are expected to testify" [Foley v. American Independent Paper

Mills, 222 AD2d 401 [2d Dept. 1995]] All that is required is

disclosure of the "substance of those facts and opinions"

[Krygier v. Airweld, Inc., 176 AD2d 700 [2d Dept. 1991] i Hegler

v. Lowe's, 280 AD2d 645 [2d Dept. 2001] i Marshall v. 130 N.

Bedford Rd., 277 AD2d 432 [2d Dept. 2000] i Ferris v. Marchese,

284 AD2d 998 [4th Dept. 2001] i Barrowman v. Niagara Mohawk, 252

AD2d 946 [4th Dept. 1998] i McClaine v. Rockport Mem. Hospital,

236 AD2d 864 [4th Dept. 1997] i Nedell v. St. George's Golf, 203

AD2d 121 [1st Dept. 1994]].

It is a matter of public policy to have cases resolved on

the merits when possible [Sessa v. Buena Vida Constr., 789 NYS2d

918 [2d Dept. 2005] i 0' Laughlin v. Delisser,

Dept. 2005] i Costanza v. Gold, 12 AD3d 551

Bunch v. Dollar Budget, Inc., 12 AD3d 391

788 NYS2d 860 [2d

[2d Dept. 2004] i

[2d Dept. 2004]].

Where there is a "short delay" in responding to discovery which

works no "prejudice" to the opposing party, this policy requires

that the default be excused, especially where, as here, there is

a "lack of willfulness" [Daniels v. Bovis Lendlease, 12 AD3d 342

[2d Dept. 2004] i see also, Eckna v. Kesselman, 11 AD3d 507 [2d

Dept. 2004] i Louis v. St. Francis Hospital, 10 AD3d 678 [2d

Dept. 2004]].

And while the Court of Appeals has stressed the necessity

of timely compliance with court orders and discovery demands so

26

that the system functions properly [Kihl v. Pfeffer, 94 NY2d

118, 122-3 [1999]], a short, inadvertent delay which works no

prejudice does not justify the remedy of preclusion.

Non-compliance with an order regarding expert disclosure is

not sufficient to justify preclusion in the absence of

intentional conduct and prejudice [Rockville Centre v. Spiegel,

Peter & Liu]

Courts have held again and again that a delayed response to

a demand for expert disclosure does not warrant preclusion where

the delay was inadvertent and caused no prejudice to the

demanding party. See, Young v. LIU, supra; Shopsin v. Siben &

Siben, supra; Blade v. North Hempstead, supra; McClusky v.

Shapiro, supra; Cutsogeorge v. Hertz Corp. , supra; see

generally, Aversa v. Taubes, supra; Lanoce v. Kempton, supra.

27

CONCLUSIONBased on the foregoing, we believe that the order appealed

from should be reversed and the complaint reinstated and the

plaintiff be granted a new trial on all issues.

Respectfully submitted,

BURNS & HARRIS, ESQS.Attorneys for Plaintiff-Appellant

By:Brian J. Isaac, Esq.POLLACK POLLACK ISAAC & DECICCOAppellate Counsel225 Broadway, Suite 307New York, New York 10007212-233-8100

Brian J. Isaac, Esq.Michael H. Zhu, Esq.

Of Counsel

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PRINTING SPECIFICATIONS STATEMENT

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foregoing brief was prepared on a computer.

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Dated: New York, New YorkNovember 9, 2009

Brian J. Isaac, Esq.Appellate Counsel for Plaintiff-Appellant

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