Lillis v. D'Souza, 174 A.D.2d 976 (N.Y. App. Div. 1991). · Go Syfert
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Lillis v. D'Souza, 174 A.D.2d 976 (N.Y. App. Div. 1991). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases · …at least 90 days before the date set for trial or for the case to be ready for trial at p. 976 ⚠ not in text
44 citation events (21 in the last 25 years) across 3 distinct courts.
Strongest positive: Burbige v. Siben & Ferber (nyappdiv, 2014-03-05)
Treatment trajectory · 1991 → 2026 · click a year to view as-of
1991 2008 2026
Top citers, strongest first. 12 distinct citers. How cited ↗
discussed Cited as authority (rule) Burbige v. Siben & Ferber
N.Y. App. Div. · 2014 · confidence medium
CPLR 3101 (d) (1) (i) “does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute, unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party” (Cutsogeorge v Hertz Corp., 264 AD2d 752, 753-754 [1999], quoting Aversa v Taubes, 194 AD2d 580, 582 [1993], quoting Lillis v D’Souza, 174 AD2d 976, 976 [1991] [internal quotation marks omitted]; see Barchella Contr.
discussed Cited as authority (rule) Burbige v. Siben & Ferber
N.Y. App. Div. · 2014 · confidence medium
CPLR 3101 (d) (1) (i) “does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute, unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party” (Cutsogeorge v Hertz Corp., 264 AD2d 752, 753-754 [1999], quoting Aversa v Taubes, 194 AD2d 580, 582 [1993], quoting Lillis v D’Souza, 174 AD2d 976, 976 [1991] [internal quotation marks omitted]; see Barchella Contr.
discussed Cited as authority (rule) Begley v. City of New York
N.Y. App. Div. · 2013 · confidence medium
Although CPLR 3101 (d) (1) (i) requires a party, upon request, to identify the expert witnesses the party expects to call at trial, it “does not require a party to respond to a demand for expert witness information ‘at any specific time’ ” (Aversa v Taubes, 194 AD2d 580, 582 [1993], quoting Lillis v D’Souza, 174 AD2d 976, 976 [1991]; see Rivers v Birnbaum, 102 AD3d 26, 35 [2012]).
discussed Cited as authority (rule) Begley v. City of New York
N.Y. App. Div. · 2013 · confidence medium
Although CPLR 3101 (d) (1) (i) requires a party, upon request, to identify the expert witnesses the party expects to call at trial, it “does not require a party to respond to a demand for expert witness information ‘at any specific time’ ” (Aversa v Taubes, 194 AD2d 580, 582 [1993], quoting Lillis v D’Souza, 174 AD2d 976, 976 [1991]; see Rivers v Birnbaum, 102 AD3d 26, 35 [2012]).
discussed Cited as authority (rule) Rivers v. Birnbaum (2×)
N.Y. App. Div. · 2012 · confidence medium
As such, a CPLR 3101 (d) (1) (i) demand made during discovery “does not require a party to respond to a demand for expert witness information ‘at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompli anee with the statute’ ” (Aversa v Taubes, 194 AD2d 580, 582 [1993], quoting Lillis v D’Souza, 174 AD2d 976, 976 [1991]; see David D.
discussed Cited as authority (rule) Rivers v. Birnbaum (2×)
N.Y. App. Div. · 2012 · confidence medium
As such, a CPLR 3101 (d) (1) (i) demand made during discovery “does not require a party to respond to a demand for expert witness information ‘at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompli anee with the statute’ ” (Aversa v Taubes, 194 AD2d 580, 582 [1993], quoting Lillis v D’Souza, 174 AD2d 976, 976 [1991]; see David D.
discussed Cited as authority (rule) Holstein v. Community General Hospital of Greater Syracuse
N.Y. App. Div. · 2011 · confidence medium
Indeed, the “trial was a prototypical battle of the experts, and the jury’s acceptance of [plaintiffs] case was a rational and fair interpretation of the evidence” (Li llis v D’Souza, 174 AD2d 976, 977 [1991], Iv denied 78 NY2d 858 [1991]; see Winiarski v Harris [appeal No. 2], 78 AD3d 1556, 1557 [2010]).
discussed Cited as authority (rule) Winiarski v. Harris
N.Y. App. Div. · 2010 · confidence medium
Indeed, “[t]his trial was a prototypical battle of the experts, and the jury’s acceptance of [plaintiffs’] case was a rational and fair interpretation of the evidence” (Lillis v D’Souza, 174 AD2d 976, 977 [1991], lv denied 78 NY2d 858 [1991]).
discussed Cited as authority (rule) Russell v. City of Buffalo
N.Y. App. Div. · 2006 · confidence medium
Indeed, this trial presented a classic battle of the experts on the determinative issue of causation (see Johnston v Joyce, 192 AD2d 1124, 1125 [1993]; Lillis v D’Souza, 174 AD2d 976, 977 [1991], lv denied 78 NY2d 858 [1991]).
discussed Cited as authority (rule) Osinski v. Taefi
N.Y. App. Div. · 2004 · confidence medium
Plaintiffs failed to establish that the original documents were destroyed (see Lillis v D’Souza, 174 AD2d 976, 977 [1991], lv denied 78 NY2d 858 [1991]), much less that they were destroyed with a fraudulent intent (cf. Lipschitz v Stein, 10 AD3d 634, 638 [2004]).
discussed Cited as authority (rule) Dailey v. Keith
N.Y. App. Div. · 2003 · confidence medium
Contrary to defendants’ contentions, plaintiffs’ belated disclosure of the expert was not intentional or willful (see Cutsogeorge v Hertz Corp., 264 AD2d 752, 753-754 [1999]; Aversa v Taubes, 194 AD2d 580, 582 [1993]) and “[t]he expert testimony offered no surprises” (Lillis v D’Souza, 174 AD2d 976, 976 [1991], lv denied 78 NY2d 858 [1991]).
cited Cited "see, e.g." Ferris v. Coleman Co.
N.Y. Sup. Ct. · 1994 · signal: see also · confidence low
See also, Lillis v D’Souza ( 174 AD2d 976 [4th Dept 1991]).
Retrieving the full opinion text from the archive…
Karen Lillis
v.
Marcelino F. D'Souza
Appellate Division of the Supreme Court of the State of New York.
Jun 7, 1991.
174 A.D.2d 976
Cited by 39 opinions  |  Published

—Judgment unanimously affirmed without costs. Memorandum: We reject plaintiffs’ contention that the trial court should have precluded defendants’ expert from testifying at trial because defendants did not respond until the second day of trial to the demand for disclosure of the report of the expert. CPLR 3101 (d) (1) (i) does not require a party to retain an expert at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute. The record reveals that the expert was retained only a week prior to trial and there is no evidence of intentional or willful nondisclosure by defendants. The expert testimony offered no surprises, and plaintiffs have not demonstrated any prejudice. Thus, the trial court did not abuse its discretion in allowing the expert to testify for defendants (see, Saar v Brown & Odabashian, 139 Misc 2d 328, 333-335; Dunn v Medina Mem. Hosp., 131 Misc 2d 971, 974; see also, Siegel, NY Prac § 348A [2d ed]).

[*977] In addition, the trial court properly rejected plaintiffs’ request to charge the jury on the inferences that may be drawn from the destruction of evidence because, in fact, there was no showing that any evidence had been destroyed (see generally, PJI 1:77; Richardson, Evidence § 91 [Prince 10th ed]).

Finally, there is no merit to plaintiffs’ contention that the jury’s verdict for defendants was against the weight of the evidence. A jury’s verdict is not against the weight of the evidence unless utterly irrational and unsupported by a fair interpretation of the evidence (see, Cohen v Hallmark Cards, 45 NY2d 493; Monahan v Comenale, 124 AD2d 1031; see also, Petrovski v Fornes, 125 AD2d 972, lv denied 69 NY2d 608). This trial was a prototypical battle of the experts, and the jury’s acceptance of defendants’ case was a rational and fair interpretation of the evidence. (Appeal from Judgment of Supreme Court, Erie County, Fallon, J.—Medical Malpractice.) Present—Dillon, P. J., Denman, Lawton, Lowery and Davis, JJ.