Sloan v 216 Bedford Kings Corp.

Supreme Court, Kings County

Decided on May 7, 2026

Index No. 506287/2018

Aaron D. Maslow, J.

The following numbered papers were used with respect to the determination herein: NYSCEF Document Numbers 218, 727, 945-946, 948-957.

I. Introduction

In advance of the trial in this action, Plaintiffs Hilary Sheryl Sloan ("plaintiff Sloan") and Noah Shulman (collectively "the plaintiffs") moved in limine with 11 branches to their motion. Defendant 216 Bedford Kings Corp. ("the defendant") moved in limine with 30 branches to its motion. At a pre-trial conference on May 1, 2026, the parties withdrew certain branches of their motions. This decision and order determines Branch No. 24 of the defendant's motion, which seeks to preclude the plaintiffs from calling as expert witnesses Drs. Debra Dwyer and Alan Leiken, economists.^FN1

II. Background

On January 10, 2018, plaintiff Sloan was allegedly injured when she slipped and fell on a patch of ice while walking on the sidewalk abutting 216 Bedford Avenue in Brooklyn. The defendant 216 Bedford Kings Corp. was the owner of the property at that address. As a result, plaintiff Sloan claims injuries to her left wrist, left shoulder, and left arm. Most notably, plaintiff Sloan claims a comminuted fracture of the distal left humerus that required multiple surgeries and resulted in associated nerve pain, neuropathy, and Complex Regional Pain Syndrome. Plaintiff Sloan treated extensively with various physicians in the years following the accident and, to date, she claims to have undergone ten surgeries as a result of the accident. Asserting economic damages (both past and future) totaling $25,956,905.00 and past and future damages for pain and suffering, plaintiff Sloan alleges that permanent disability prevents her from working. Plaintiff Noah Shulman, husband of plaintiff Sloan, sues derivatively for loss of consortium and services.

III. The Defendant's Contentions

Drs. Debra Dwyer and Alan Leiken are the plaintiffs' economic experts. The defendant seeks to preclude their testimony. At the May 1, 2026 pre-trial conference, when oral argument was heard on the parties' motions in limine, the plaintiffs averred that they were not calling Dr. Leiken inasmuch as Dr. Dwyer would be testifying. (Both Drs. Dwyer and Leiken signed the economic report which appears in the expert disclosure at NYSCEF Doc No. 218). That leaves whether Dr. Dwyer should be precluded from testifying.

The grounds for the defendant's motion to preclude Dr. Dwyer are that she would testify [*2]about plaintiff Sloan's

past lost earnings, future lost earnings, replacement value of household services, loss of past and future fringe benefits, and work-life expectancy. In formulating their opinions, the experts relied on Plaintiff Sloan's tax returns, disability records, and health insurance records. After 216 Bedford requested these documents, and Plaintiffs refused to produce them, 216 Bedford filed a notice of rejection of Dwyer and Leiken. The August 27, 2025 notice memorializes "plaintiffs' failure to provide all documents relied upon by the experts, including but not limited to tax returns for a period of three years prior to the date of the accident to present time, employment/pension/disability benefits, and insurance benefits." (NYSCEF Doc No. 946 at 22.)

The defendant maintains that the plaintiffs "fail[ed] to disclose all evidence on which the experts relied" (id.). In light of this, preclusion is called for, argues the defendant.

IV. The Plaintiffs' Contentions

The plaintiffs characterize the defendant's seeking to preclude the economic expert testimony as "yet another attempt to relitigate the discovery denied to Defendant 216" (NYSCEF Doc No. 948 ¶ 79). The plaintiffs maintain that nothing in their tax returns is relevant beyond the W2 forms which were exchanged and relied upon by the economists. Also, they did provide full "tax returns for the company the Plaintiff [Sloan] formed to market her Instagram famous dogs until the injury prevented her from doing that further" (id. n 2).

The plaintiffs advert to their having disclosed that which the court required in prior motion practice — criticizing the defendant for relitigating the discovery issues. Most recently, on April 16, 2026 (NYSCEF Doc No. 956), Hon. Justice Kenneth P. Sherman, sitting in JCP, denied the defendant's application for discovery beyond that which was required to be disclosed in orders dated October 29, 2025 (NYSCEF Doc No. 957) and December 22, 2025 (NYSCEF Doc No. 727)

V. Discussion

(A) Expert Disclosure

Dr. Debra Dwyer holds a Ph.D. in economics and presently is chair of the Department of Health Care Policy and Management at SUNY Stony Brook. According to the plaintiffs, Dr. Dwyer is expected to testify regarding plaintiff Sloan's past and present economic and financial loss of earnings. The testimony will also include "replacement value of non-market services, the effects of inflation upon the matters that will be the subject of economic damages, and . . . the value of past and future fringe benefits. Further, the expert can be expected to testify to matters related to work life expectancy as they relate to economic damages claimed herein." (NYSCEF Doc No. 218 at PDF 1.)

According to Drs. Dwyer and Leiken's report, plaintiff Sloan was working as a marketing director at the time of the accident, earning an annual salary of over $200,000. She also earned [*3]some non-employment income from The Dog Agency. The report analyzes plaintiff Sloan's earning history and projected her future earning capacity based on market factors. It also projected future costs of health care based on government statistics.

(B) Statutory and Case Law

"The admissibility and scope of expert testimony is a determination within the discretion of the trial court (see De Long v County of Erie, 60 NY2d at 307; see Christoforatos v City of New York, 90 AD3d at 970)" (Robins v City of Long Beach, 192 AD3d 709, 710 [2d Dept 2021]; see People v Cronin, 60 NY2d 430 [1983]).

CPLR 3101 (d) (1) (i) requires that expert disclosure include "the substance of the facts and opinions on which each expert is expected to testify . . . and a summary of the grounds for each expert's opinion." Expert disclosure must include a description of the methodology used to render an opinion (see Dovberg v Laubach, 154 AD3d 810 [2d Dept 2017]).

The willful failure to provide timely discovery relating to an expert witness which results in prejudice to the opposing party warrants preclusion of the expert's testimony (see Sushchenko v Dyker Emergency Physicians Serv., P.C., 86 AD3d 638 [2d Dept 2011] [provided several days after trial commenced]; Bickford v St. Francis Hosp., 19 AD3d 344 [2d Dept 2005]).

Due to the "confidential and private nature" of tax returns (Roth v American Colonial Ins. Co., 159 AD2d 370, 370 [1990]), "[t]ax returns generally are not discoverable in the absence of a strong showing that the information is indispensable to a claim or defense and cannot be obtained from other sources" (Katz v Castlepoint Ins. Co., 121 AD3d 948, 949 [2014]; see Levine v City Med. Assoc., P.C., 108 AD3d at 747). Here, the plaintiff failed to make the requisite showing, since the plaintiff did not establish that information in the tax returns was indispensable to the Labor Law claim and could not be obtained from other sources (see Katz v Castlepoint Ins. Co., 121 AD3d at 949; Gitlin v Chirinkin, 71 AD3d 728 [2010]; Benfeld v Fleming Props., LLC, 44 AD3d 599, 600 [2007]; Muller v Sorensen, 138 AD2d 683, 684 [1988]). (Nill v Gaco W., LLC, 203 AD3d 1173, 1174-1175 [2d Dept 2022.)

A motion in limine made on the eve of trial to preclude an expert witness on the basis of an incomplete basis for anticipated trial testimony — as set forth in expert disclosure — is improper (see Sadek v Wesley [1st Dept 2014] [theory of causation in exchanged report challenged]).

A discovery order constitutes law of the case (see Ordonez v Guerra, 295 AD2d 325, 328 [2d Dept 2002]), although a court may disregard it in extraordinary circumstances (see Andrea v E.I. Du Pont Nemours & Co., 289 AD2d 1039, 1041 [2d Dept 2001]). Nonetheless, it has been held:

While an evidentiary ruling made before trial is generally reviewable only in connection with an appeal from the judgment rendered after trial (Weatherbee Constr. Corp. v Miele, 270 AD2d 182 [2000]), it was error for the motion court to preclude defendant from re-raising the evidentiary issues before the trial court. A motion court's evidentiary ruling before trial does not foreclose a related application to the trial court, which is always [*4]empowered to determine whether an expert is qualified to testify (see De Long v County of Erie, 60 NY2d 296, 307 [1983]), and whether a proper foundation exists for the expert's testimony (see generally Caton v Doug Urban Constr. Co., 65 NY2d 909, 911 [1985]; see also Hassett v Long Is. R.R. Co., 6 Misc 3d 168 [2004]).(Kelly v Metro-North Commuter R.R., 74 AD3d 483, 485 [1st Dept 2010].)

(C) Application of Case Law

In reviewing the history of this case prior to determining Motion Sequence No. 26 (see supra at 1 n 1), and in the course of issuing previous orders-decisions concerning the parties' motions in limine, it became apparent to the Court that the defendant was lax in pursuing discovery from the plaintiffs during the pre-note of issue stretch of time. This resulted in a scramble to obtain discovery after the plaintiffs filed the note of issue and the issuance of orders determining the defendant's motions which the latter was disappointed with. The consequence was that the defendant repeatedly sought to delay commencement of the trial. Even now, with this branch of its motion in limine, the defendant attempts to prevent the introduction of economic evidence on the basis of its not having received all of its sought discovery.

There has been no showing of willful failure by the plaintiffs to disclose to the defendant that which they were directed to produce by the orders of prior judges in this case. There are no extraordinary circumstances present which would impel the Court to depart from those orders, which constitute law of the case (see Ordonez v Guerra, 295 AD2d at 328). To the extent these orders denied disclosure of income tax returns, the Court finds them not to constitute an abuse of discretion. The Court does not discern special circumstances which would have warranted disclosure of the plaintiffs' complete tax returns when plaintiff Sloan's W2 forms and certain other financial information were provided (see Nill v Gaco W., 203 AD3d at 1174-1175).

Having reviewed the expert report of Drs. Dwyer and Leiken, the Court finds no grounds for the defendant's cavil. References by the economists to national trends and life expectancy are from publicly available sources. In terms of lost earnings, the economists rely on W2 information which was provided to the defendant. They do not appear to reference any information specific to plaintiff Sloan gleaned from income tax returns which was not in her W2 forms. The methodology used to render an opinion was disclosed (cf. Dovberg v Laubach, 154 AD3d 810). The defendant has been provided with sufficient information about plaintiff Sloan's employment, pension, disability, and insurance benefits, and, in fact, it wanted to introduce evidence about them (which was denied in the decision-order dated May 4, 2026). It puzzles the Court that the defendant claims lack of information it itself sought to present to the jury. Therefore, with the "the substance of the facts and opinions on which each expert is expected to testify . . . and a summary of the grounds for each expert's opinion" having been disclosed (CPLR 3101 [d] [1] [i]), the Court perceives no valid rationale upon which to preclude Dr. Dwyer from testifying.

VI. Conclusion

Accordingly, it is hereby ORDERED that the branch of the defendant's motion in limine seeking to preclude the plaintiffs from calling Drs. Debra Dwyer and Alan Leiken, the latter's expert economists, is DENIED.