        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

621
CA 14-00777
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND WHALEN, JJ.


DOMENIC MAGGIO, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

RONALD JOHN DOUGHTERY, THE TULLY HILL
CORPORATION, DOING BUSINESS AS TULLY HILL
CHEMICAL DEPENDENCY TREATMENT CENTER,
COMMUNITY GENERAL HOSPITAL AND MICHAEL
SHAW, DEFENDANTS-RESPONDENTS.


KUCHNER LAW FIRM, PLLC, SYRACUSE, D.J. & J.A. CIRANDO, ESQS. (JOHN A.
CIRANDO OF COUNSEL), FOR PLAINTIFF-APPELLANT.

GOLDBERG SEGALLA LLP, GARDEN CITY (LISA ROBINSON OF COUNSEL), FOR
DEFENDANT-RESPONDENT THE TULLY HILL CORPORATION, DOING BUSINESS AS
TULLY HILL CHEMICAL DEPENDENCY TREATMENT CENTER.

MARTIN, GANOTIS, BROWN, MOULD & CURRIE, P.C., DEWITT (C. TAYLOR PAYNE
OF COUNSEL), FOR DEFENDANTS-RESPONDENTS COMMUNITY GENERAL HOSPITAL AND
MICHAEL SHAW.

SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (EDWARD J. SMITH, III,
OF COUNSEL), FOR DEFENDANT-RESPONDENT RONALD JOHN DOUGHTERY.


     Appeal from an order of the Supreme Court, Onondaga County (John
C. Cherundolo, A.J.), entered April 10, 2013. The order, among other
things, granted the motions and cross motion of defendants to preclude
plaintiff from offering any expert evidence at trial and to dismiss
the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying the motions and cross
motion in part, and reinstating the complaint, and as modified the
order is affirmed without costs.

     Memorandum: In this action for medical malpractice, plaintiff
alleges that defendants failed to diagnose his Wernicke’s Syndrome and
failed to follow the standard of medical care in the prescription and
administration of thiamine. Defendants moved and cross-moved pursuant
to, inter alia, CPLR 3126 for an order precluding plaintiff from
offering any expert evidence at trial for failure to comply with CPLR
3101 (d) (1), and dismissing the complaint. Supreme Court granted the
motions and cross motion, and plaintiff appeals.
                                 -2-                           621
                                                         CA 14-00777

     We reject plaintiff’s contention that the court erred in granting
the motions and cross motion insofar as they sought preclusion. “It
is within the sound discretion of the trial court to determine whether
a witness may testify as an expert[,] and that determination should
not be disturbed in the absence of serious mistake, an error of law or
abuse of discretion” (Harris v Seager, 93 AD3d 1308, 1309 [internal
quotation marks omitted]). The record establishes that the report of
plaintiff’s expert was prepared in draft format prior to plaintiff’s
cross motion for an extension of time to provide expert disclosure and
that plaintiff delayed disclosing that report for approximately eight
months after its preparation. Plaintiff does not dispute that he
disclosed the expert’s report after the court-imposed deadline for
disclosure. Furthermore, the report failed to disclose information
required by CPLR 3101 (d) (1). We therefore perceive no abuse of the
court’s discretion in granting preclusion (see Harris, 93 AD3d at
1309).

     We agree with plaintiff, however, that the court erred in
granting those parts of the motions and cross motion seeking dismissal
of the complaint on the ground that plaintiff cannot establish a prima
facie case without the benefit of expert testimony (cf. Grassel v
Albany Med. Ctr. Hosp., 223 AD2d 803, 805, lv dismissed in part and
denied in part 88 NY2d 842; see generally Monahan v St. Joseph’s Hosp.
& Health Care Ctr. [appeal No. 1], 82 AD2d 102, 107). We therefore
modify the order accordingly. The motions and cross motion sought
dismissal as a sanction for a discovery violation rather than summary
judgment dismissing the complaint. We conclude that, under the
circumstances of this case, preclusion was the appropriate sanction
and that the court therefore abused its discretion in dismissing the
complaint (see Breen v Laric Entertainment Corp., 2 AD3d 298, 300; see
also CPLR 3126; cf. Tartan Textile Servs., Inc. v. St. Joseph’s Hosp.
Health Ctr., 59 AD3d 955, 956).




Entered:   July 2, 2015                         Frances E. Cafarell
                                                Clerk of the Court
