| Keita v Zahava Servs. Corp. |
| 2016 NY Slip Op 04113 [139 AD3d 610] |
| May 26, 2016 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Moussa Keita, Previously Known as Adama Diabae,
Respondent, v Zahava Services Corp. et al., Appellants. |
Connors & Connors, P.C., Staten Island (Robert J. Pfuhler of counsel), for appellants.
Spiegel & Barbato, LLP, Bronx (Brian C. Mardon of counsel), for respondent.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered October 8, 2015, which denied defendants' motion to preclude plaintiff from offering expert testimony, or alternatively, to compel him to exchange his expert's reports, notes and records, and submit to a vocational rehabilitation examination, unanimously affirmed, without costs.
The motion court providently exercised its discretion in denying defendants' motion. Plaintiff's CPLR 3101 (d) notice provides enough detail regarding the substance of his expert's expected testimony (see CPLR 3101 [d] [1] [i]).
Defendants are not entitled to the expert's reports, notes or records (see Richards v Herrick, 292 AD2d 874 [4th Dept 2002]). Nor are they entitled to a vocational rehabilitation examination of plaintiff. Defendants' motion was made after the filing of the note of issue, and they have not shown that unusual or unanticipated circumstances developed subsequent to the filing (see 22 NYCRR 202.21 [d]; Schroeder v IESI NY Corp., 24 AD3d 180, 181 [1st Dept 2005]; Silverberg v Guzman, 61 AD3d 955, 956 [2d Dept 2009]; Schenk v Maloney, 266 AD2d 199, 200 [2d Dept 1999]). Concur—Friedman, J.P., Acosta, Saxe, Gische and Webber, JJ.