Many Hands Do Not Make a Better Stew
Defense attorneys, when moving to dismiss, or even to denigrate Plaintiff's case will tell the court (rather haughtily) that "this is the 4th attorney for plaintiff" or something similar. Their point is that the case must be worthless if there have been multiple attorneys for plaintiff.
Wadsworth Condos LLC v Dollinger Gonski & Grossman. 2014 NY Slip Op 30502(U, ) February 27, 2014 Supreme Court, New York County Docket Number: 600899/2009 Judge: Louis B. York is an example of how a simple thing like obtaining and serving a notice for the expert can get pushed from attorney to attorney, and then cause a problem.
"Plaintiffs Wadsworth Condos, LLC, and 43 Park Owners Group, LLC, move, pursuant to CPLR 2004, 3101 ( d) (1) (i) and 3101 (h), to compel defendants Dollinger, Gonski, & Grossman, and Michael Dollinger (defendants), to accept plaintiffs' supplementary expert witness disclosure, and to allow plaintiffs' experts to testify at trial. Defendants cross-move for an order denying plaintiffs' motion to compel the acceptance of the expert disclosure."
This action involves allegations that defendants committed legal malpractice when they allegedly commenced an action without plaintiffs' authorization. Plaintiffs served a summons and complaint on defendants on March 24, 2009. Plaintiffs' first attorney of record in this action was Silverman, Sclar, Shin, & Byrne. On October 5, 2009, the law firm of Shapiro & Shapiro,LLP, took over as plaintiffs' counsel, followed by Daniel Friedman, Esq. who served as counsel until March 24, 2011, at which time the law firm of Peter R. Ginsberg Law, LLC, was retained. Plaintiffs' present counsel is Marc M. Coupey, Esq., who became plaintiffs' sole counsel on August 17, 2012.
Plaintiffs contend that, on August 5, 2011, they served on all parties their initial response to defendants' demand for expert witness information in which they reserved their rights to provide defendants with expert information once they retained such experts. Plaintiffs maintain that on November 4, 2011, all parties were notified at the deposition of witness Joe Bobker that Michael Sullivan was going to be plaintiffs expert and what his probable testimony would be. "
"The Appellate Division, First Department, has held that "[p ]preclusion of expert evidence on the ground of failure to give timely disclosure, as called for in CPR 3101 ( d) (1) (i), is generally unwarranted without a showing that the noncompliance was willful or prejudicial to the party seeking preclusion." Martin v Tribune Bridge & Tunnel Auth., 73 AD3d 481, 482 (1st Dept 2010) (citations omitted). See also Handwork v City of New York, 90 AD3d 409, 409 (1st Dept 2011) (holding that there is no evidence of what prejudice defendants suffered or that plaintiff willfully failed to disclose the experts in a timely manner). Here, defendants fail to meet their burden and do not demonstrate what, if any, prejudice they will suffer if plaintiffs serve expert disclosure. "