This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 132
Evelyn Rivera, as Administratrix
of the Estate of Wilbur
Rodriguez, Deceased,
            Appellant,
        v.
Montefiore Medical Center,
            Respondent.




          Brian J. Shoot, for appellant.
          Christopher Simone, for respondent.




MEMORANDUM:
          The order of the Appellate Division, insofar as
appealed from, should be affirmed, with costs, and the certified
question answered in the affirmative.
          The issue on this appeal is whether the trial court
abused its discretion as a matter of law in denying as untimely


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plaintiff's motion to preclude the testimony of defendant's
expert on the grounds that the CPLR 3101 (d) disclosure statement
was deficient.    We hold that it did not.
            Decedent entered defendant's hospital facility with
symptoms of pneumonia and died early the next morning after being
admitted to an area of the hospital that lacked continuous
monitoring of patients' vital signs.      The autopsy report
identified the cause of death as bronchopneumonia complicated by
diabetes.    Plaintiff, decedent's mother, brought this action.
            In preparation for trial, defendant timely served a
CPLR 3101 (d) expert disclosure statement on plaintiff.        The
statement in relevant part informed plaintiff that the expert
would testify "on the issue of causation" and "as to the possible
causes of the decedent's injuries and contributing factors."
Plaintiff's sole objection before trial was that the statement
did not provide the dates of the expert's medical residency, and
defendant cured this omission.
            At trial, although the hospital treating physician
testified that decedent's death was caused in part by pneumonia,
on cross examination he stated that he believed decedent instead
died from acute cardiac arrhythmia.      Plaintiff's expert also
testified that decedent's death was caused in part by pneumonia,
but acknowledged that a cardiac event was a possible cause of
death on cross-examination.    Plaintiff moved to preclude
defendant's expert from giving "any testimony . . . regarding any


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possible causes of the decedent's death" on the grounds that the
disclosure statement "did not include any reasonable detail
whatsoever as to what possible causes" led to decedent's death.
Plaintiff did not seek an adjournment.   The trial court denied
the application as untimely.   Defendant's expert then testified
that he disagreed with plaintiff's expert and the autopsy report
regarding the cause of death, that decedent's vital signs instead
showed no indication of worsening respiration, that decedent's
other health issues increased his risk for cardiac problems, and
that the cause of death was sudden, lethal cardiac arrhythmia.
In defense counsel's closing statement, he argued that decedent's
cause of death was "sudden lethal cardiac arrhythmia."
          The jury found defendant liable based on the failure to
place decedent in an area of the hospital with continuous
monitoring and awarded plaintiff damages.   Plaintiff moved under
CPLR 4404(a) for an order striking all testimony regarding
cardiac arrhythmia as the cause of death and setting aside the $0
award for conscious pain and suffering, arguing that the expert
disclosure statement failed to include the theory that decedent
died of cardiac arrhythmia and so the disclosure was deficient.
The trial court again denied the motion as "untimely made at the
time of trial."
          The Appellate Division affirmed the order, holding that
plaintiff failed to timely object to the lack of specificity in
the expert disclosure statement and that plaintiff was not


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justified in assuming that the defense expert's testimony would
comport with the autopsy report's conclusion (123 AD3d 424 [1st
Dept 2014]).   The Appellate Division held that where plaintiff's
own experts acknowledged that sudden cardiac arrhythmia was a
possibility based on decedent's medical history and condition,
and where evidence in the record supported this theory, the
testimony need not be stricken as an unfair surprise. One justice
dissented and granted leave to appeal (see CPLR 5602 [b]).
          CPLR 3101 (d) (1) (i) requires each party to "identify
each person whom the party expects to call as an expert witness
at trial and [to] disclose in reasonable detail the subject
matter on which each expert is expected to testify, the
qualifications for each expert witness and a summary of the
grounds for each expert's opinion."    It was within the trial
court's discretion to deny plaintiff's motion to preclude (see
People v Carroll, 95 NY2d 375, 385 [2000]).    Trial courts possess
broad discretion in their supervision of expert disclosure under
CPLR 3101 (d) (1) (see Bernardis v Town of Islip, 95 AD3d 1050,
1050 [2d Dept 2012]).   "A determination regarding whether to
preclude a party from introducing the testimony of an expert
witness at trial based on the party's failure to comply with 3101
(d) (1) (i) is left to the sound discretion of the court"
(McGlauflin v Wadhwa, 265 AD2d 534, 534 [2d Dept 1999]; see also
Deandino v New York City Tr. Auth., 105 AD3d 801, 803 [2d Dept
2013]; but see Saldivar v I.J. White Corp., 46 AD3d 660, 661 [2d


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Dept 2007]).
          Plaintiff made her motion mid-trial immediately prior
to the expert's testimony.    Plaintiff argues that at the time of
the expert exchange, she had no reason to object to the
disclosure statement because the statement gave no indication
that defendant would challenge plaintiff's theory of decedent's
cause of death.    Assuming defendant's disclosure was deficient,
such deficiency was readily apparent; the disclosure identified
"causation" as a subject matter but did not provide any
indication of a theory or basis for the expert's opinion.      This
is not analogous to a situation in which a party's disclosure was
misleading or the trial testimony was inconsistent with the
disclosure.    Rather, the issue here was insufficiency.
          The trial court's ruling did not endorse the
sufficiency of the statement but instead addressed the motion's
timeliness.    The lower courts were entitled to determine, based
on the facts and circumstances of this particular case, that the
time to challenge the statement's content had passed because the
basis of the objection was readily apparent from the face of the
disclosure statement and could have been raised -- and
potentially cured -- before trial.      Accordingly, there was no
abuse of discretion as a matter of law.
          Lastly, plaintiff's claim that the testimony regarding
cardiac arrhythmia should have been excluded as speculative must
also be rejected because the challenged theory was premised on


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ample evidence in the record.
*   *   *   *   *   *   *   *    *      *   *   *   *   *   *     *   *
Order, insofar as appealed from, affirmed, with costs, and
certified question answered in the affirmative, in a memorandum.
Chief Judge DiFiore and Judges Pigott, Rivera, Abdus-Salaam,
Stein, Fahey and Garcia concur.

Decided October 20, 2016




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