Motion by defendants in limine for an order precluding plaintiff from offering at trial the accident photographs of decedent, any evidence of conscious pain and suffering, any evidence of pre-impact terror, any evidence relative to the alleged sale of decedent's artwork, any testimony by Dr. Alan Leiken and any evidence in support of plaintiff's claim for loss of decedent's household services is denied in all respects.

Photographs that are a fair and accurate representation of plaintiff shortly after the accident are admissible to aid the jury [*2]in assessing plaintiff's pain and suffering and the medical testimony adduced relative thereto (see Axelrod v. Rosenbaum, 205 AD2d 722 [2nd Dept 1994]). The probative value of such evidence may outweigh its potential for prejudice (see Salazar v. B.R. Fries and Assoc., 251 AD2d 210 [1st Dept 1998]). The motion, therefore, is premature. Since the issue of whether the photographs of decedent's injuries are sought to be admitted only to inflame the jury or whether they will properly aid the jury in assessing decedent's conscious pain and suffering must await plaintiff's offer of proof at trial on the issue of conscious pain and suffering.

This Court considers defendants' in limine request to preclude plaintiff from offering any evidence of conscious pain and suffering at trial to be, in essence, a motion for summary judgment, since defendants are seeking the preclusion not of any specific items of evidence, but, rather, of plaintiff's cause of action for conscious pain and suffering itself. Therefore, since summary judgment, at this juncture, is improper, the relief requested by defendants must await the conclusion of plaintiff's prima facie case at trial.

With respect to the pre-impact trauma component of plaintiff's cause of action for conscious pain and suffering, police officer Michael Teel, who investigated the accident, testified in his deposition (see Exhibit "F" to affirmation in opposition) that decedent was startled prior to being run over. This conclusion is not merely speculative, as defendants' attorney contends, but is based upon specific forensic evidence. Officer Teel explains how his conclusion that decedent must have been startled correlates with this objective evidence.

With respect to evidence of decedent's past and future earning capacity relative to the value of artwork produced by decedent, plaintiff shows adequate proof of the value of his artwork through the affidavits of plaintiff's experts, and Kirsten Westphal, his widow, avers that he sold his art for specific sums.

Defendants' contention that plaintiff's expert, Dr. Leiken, should be precluded from testifying, since the expert disclosures are inadequately specific to satisfy the requirements of CPLR 3101(d), is without merit. The disclosures adequately apprise defendants of the subject matter on which this expert intends to testify, the substance of the facts and opinions on which he intends to testify, his qualifications and a summary of the grounds for his opinion. There is no requirement that the expert set forth the facts upon which he is expected to testify (see Foley v. American Independent Paper Mills Supply Co., 222 AD2d 401 [2nd Dept 1995]; Krygier v. Airweld Inc., 176 AD2d 700, [2nd Dept 1991]). [*3]Requesting the expert to produce his complete file and set forth all his calculations and documentation supporting his evaluation of the economic loss sustained in this matter would be, in essence, a request that he set forth his complete testimony and is, thus, improper. This Court is of the opinion that Dr. Leiken's disclosures satisfy the requirements of CPLR 3101(d).

Plaintiff's cross-motion for a protective order quashing subpoenas and to strike defendants' disclosure of their accident reconstruction experts, Stephen Emolo and John Karpovich, pursuant to CPLR 3101(d), and to preclude them from testifying is granted.

Defendant's attorney served plaintiff with subpoenas deuces tecum seeking decedent's tax returns, all records and statements concerning the Wallace Evelyn Dibble Scholarship Fund, all proofs of sales of any artwork by decedent, all records of a fundraiser auction held at Hunter College and the entire files, including all research and notes, of plaintiff's experts Charles Rosoff and Alan Leiken. The use of a subpoena as a subterfuge for discovery is improper (see Matter of Terry D, 81 NY2d 1042 [1993]; Singh v. G&A Mounting & Die Cutting, Inc, 292 AD2d 516 [2nd Dept 2002]). The instant subpoenas are patently for the purpose of ascertaining the existence of evidence and are entirely inappropriate.

Pursuant to the order of Justice Marguerite A. Grays, issued on June 15, 2005, summary judgment was awarded in favor of plaintiff on the issue of liability and the matter was set down for trial on the issue of damages. Defendants contend that notwithstanding the granting of summary judgment to plaintiff on the issue of liability, the issue of comparative negligence remains, since it goes to the question of damages. This argument is without merit. The granting of summary judgment to plaintiff on the issue of liability necessarily entails a finding that there was no comparative negligence on the part of plaintiff (see generally Scibelli v. Hopchick, 27 AD3d 720 [2nd Dept 2006]; Farrell v. City of New York, 226 AD2d 582 [2nd Dept 1996]). Therefore, on this record, neither of defendants' reconstruction experts, Stephen Emolo or John Karpovich, shall be permitted to testify.

Accordingly, the motion is denied in its entirety and the cross-motion is granted in its entirety.

Dated: February 6, 2007

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KEVIN J. KERRIGAN, J.S.C.