Legal Document: Miguel Lima, Melanie Soles v. Hy 38 Owners Llc, Hy 39 Owner Llc, Hy 38-39 Lio Llc, Elb Holdings Llc, Iliad Realty Group, Iliad38 Llc, Monadnock Construction Inc

On February 16, 2016 a EXHIBIT(S) - A (Motion #15) - Plaintiff Motion Seq 12 to Preclude Non-Party and Expert Witnesses was filed involving a dispute between Melanie Soles, Miguel Lima, and Elb Holdings Llc, Hy 38-39 Lio Llc, Iliad38 Llc, Iliad Realty Group, Monadnock Construction Inc, for Torts - Other Negligence (Labor Law) in the District Court of Kings County.

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FILED: KINGS COUNTY CLERK 10/23/2023 05:34 PM INDEX NO. 1805/2016
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FILED: KINGS COUNTY CLERK 10/23/2023 05:34 PM INDEX NO. 1805/2016
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
__________________________________

MIGUEL LIMA and MELANIE SOLES, INDEX NO.: 1805/2016

Plaintiffs,

-against- AFFIRMATION IN SUPPORT

HY 38 OWNER LLC., HY 39 OWNER LLC.,
HY 38-39 LIO LLC, ELB HOLDINGS, LLC.,
ILIAN REALTY GROUP, ILIAD 38, LLC., and
MONADNOCK CONSTRUCTION, INC.,

Defendants.
____________________________________

Richard L. Grant, Esq., an attorney duly admitted to practice law before the Courts of the State

of New York, affirms the truth of the following, under the penalties of perjury:

1. I am an attorney at Ronai & Ronai, LLP, attorneys for the Plaintiff, MIGUEL LIMA. I make

this affirmation in support of the within motion pursuant to CPLR §3126 to preclude: (1)

alleged non-party witnesses Henry Bravo, Bernard Mulligan and Luis Arcenteles, on the

ground that said witnesses were first disclosed on the eve of trial and more than 5 years after

the Note of Issue was filed; and (2) defendants’ late-disclosed expert witnesses, Dr. Gordon

Sze, Dr. Brian Greenwald, Dr. David Zaumeyer and Bernard Lorenz, P.E. on the grounds that

the expert disclosures provided by defense counsel: (i) are unduly vague and fail adequately

to disclose the substance of the facts and the opinions of said experts; and/or (ii) fail to provide

any reports supplementing said disclosures that detail the substance of the facts and opinions

of said experts; and/or (iii) are untimely served on the eve of trial.
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2. This action, brought by the Plaintiff, MIGUEL LIMA pursuant to Labor Law §§ 240(1),

241(6) and 200, was filed on February 16, 2016, in connection with injuries he sustained

at a construction job site located at 509 W. 38th Street in Manhattan on April 27, 2015.

3. Defendants appeared through counsel, LONDON FISCHER LLP, and a Preliminary

Conference was held on September 21, 2016.

4. Thereafter, the parties conducted written discovery and depositions.

5. The Note of Issue was filed on May 29, 2018. See Exhibit “A” (Note of Issue).

6. A Preliminary Conference was held with all parties on September 21, 2016, at which time,

the Court ordered that, within 30 days, “all parties [are] to exchange names and addresses

of all witnesses, opposing parties’ statements, photographs, surveillance tapes, and

accident reports prepared in the ordinary course of business. If none, an affirmation to that

effect shall be provided.” See Exhibit “B” (Preliminary Conference Order).

7. On March 27, 2017, the parties appeared for a Compliance Conference, at which time the

Court ordered “defendants to respond to all outstanding discovery demands within 20

days,” and that “[B]oth parties reserve the right to conduct non-party depositions within 60

days following the conclusion of party depositions.” See Exhibit “C” (Compliance

Conference Order). Party depositions concluded May 4, 2018, with Defendants choosing

not to notice or conduct any non-party depositions.

8. Following the Compliance Conference, defendants served their Response to Combined

Demands for Discovery, dated May 31, 2017. See Exhibit “D.”

9. Nowhere within their Responses to Combined Demands dated 5/31/17 did defendants

identify Henry Bravo, Bernard Mulligan and Luis Arcenteles as witnesses, nor advise that
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they intended to call them for deposition or trial testimony in this matter. See Exhibit “D”

(Defendants’ Response to Combined Demands), supra.

10. Plaintiff filed a motion for summary judgment on February 15, 2019, and the defendants

filed motions for summary judgment on June 20, 2019. All motions were denied by order

of the court dated January 6, 2020.

11. All parties filed Notices of Appeal on January 23, 2020. The Appellate Division Second

Department affirmed the trial court’s order on September 14, 2022.

12. Undersigned counsel and defense counsel entered into a Stipulation to Restore the matter

to the trial calendar on or about November 30, 2022. See Exhibit “E” (Stipulation).

13. Jury selection is scheduled to be held on November 1, 2023.

14. In spite of the fact that the Note of Issue was filed May 30, 2018, over five years ago without

objection, defense counsel has just now served a veritable barrage of written discovery on

undersigned counsel, including (but not limited to) Supplemental Responses to Combined

Demands dated 9/5/23 disclosing for the first time alleged non-party witnesses Henry

Bravo, Bernard Mulligan and Luis Arcenteles, and reserving the right to call them as witnesses

at trial (see Exhibit “F”).

15. Notably, Mssrs. Bravo, Mulligan and Arcenteles were not identified as witnesses in

defendants’ original Responses to Combined Demands dated 5/31/2017 (see Exhibit “D,”

supra); nor were there names anywhere to be found in the documents produced by

defendants as part of their Responses. 1

1
In contrast, a non-

response. These three individuals we
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16. In addition, on September 13, 2023 and September 22, 2023, defense counsel served

undersigned counsel with multiple expert witness disclosures, including the following:

(a) Expert Disclosure of Brian D. Greenwald, M.D. dated September 13, 2023 (see Exhibit
“G”);

(b) Expert Disclosure of David J. Zaumeyer, Ph.D, dated September 13, 2023
(Economist)(see Exhibit “H”);

(d) Expert Disclosure of Bernard Lorenz, P.E. dated September 22, 2023 (engineer)(see
Exhibit “L”).

17. For the reasons that follow, this Court should issue an Order precluding the testimony of:

(a) the never-before disclosed witnesses Henry Bravo, Bernard Mulligan, and Luis

Arcenteles; and (b) defendants’ expert Dr. Greenwald, Dr. Zaumeyer, Dr. Sze and engineer

Bernard Lorenz, P.E.

A. The testimony of the never before disclosed witnesses Henry Bravo, Bernard
Mulligan and Luis Arcenteles should be precluded as disclosure was made more than
5 years after the filing of the Note of Issue and almost a month before trial.

18. Incredibly, in their Supplemental Response to Combined Demands dated September 5,

2023, served more than 5 years after the filing of the note of issue, defendants state

categorically that they “have not completed discovery in this action” and “reserve their

right to . . . present additional evidence . . . at a later date.” See Exhibit “F” (Supplemental

Responses to Combined Demands dated September 5, 2023).

19. Notably, defendants never moved to vacate the Note of Issue, which was filed on May 29,

2018, nor sought any permission whatsoever from the Court in making their bald assertion

that “discovery is not completed in this action.”
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20. Therefore, in spite of the Preliminary Conference Order and Compliance Conference

Order, both of which directed the defendants to specifically identify by name and address

the witnesses they intended to call on for trial testimony and limited plaintiffs’ timeframe

within which to conduct any non-party depositions to 60 days following the completion of

party depositions, the defendants failed to identify – in any manner – alleged witnesses

Henry Bravo, Bernard Mulligan and Luis Arcenteles.

21. Pursuant to CPLR § 3126, plaintiff moves to preclude alleged witnesses Henry Bravo,

Bernard Mulligan and Luis Arcenteles, from testifying at trial based on defendants’

disclosure of their identities at the eleventh hour, more than 5 years after the filing of the

note of issue, and a little over one month before the scheduled trial date of November 1,

2023, because allowing their testimony would result in incurable prejudice to the plaintiff

where these witnesses were not deposed, the defendants have provided no information as

to what they will testify, and plaintiff therefore cannot prepare for their cross-examination

at trial.

22. CPLR § 3126, “Penalties for refusal to comply with order or to disclose,” provides, in

pertinent part, as follows:

If any party ... refuses to obey an order for disclosure or willfully fails to disclose
information which the court finds ought to have been disclosed pursuant to this article, the
court may make such orders with regard to the failure or refusal as are just, among them:

1. an order that the issues to which the information is relevant shall be deemed resolved
for purposes of the action in accordance with the claims of the party obtaining the order;
or
2. an order prohibiting the disobedient party from supporting or opposing designated
claims or defenses, from producing in evidence designated things or items of testimony,
... or from using certain witnesses; or
3. an order striking out pleadings or parts thereof, or staying further proceedings until the
order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by
default against the disobedient party."
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CPLR § 3126.

23. In Arpino v. FJF & Sons Elec., 102 A.D.3d 201 (2nd Dept. 2012), the Appellate Division

reversed the trial court’s order denying plaintiff’s motion pursuant to CPLR 3126 to

preclude the testimony of four witnesses that were disclosed a mere seven months after the

filing of the note of issue.

24. In holding that preclusion was the appropriate remedy, the Second Department noted as

follows:

Compliance requires not only a timely response, but a good-faith effort to
provide a meaningful response (see Kihl v Pfeffer, 94 NY2d at 123; see
also Garcia v City of New York, 5 AD3d 725, 726 [2004]; Gomez v Gateway
Demolition Corp., 293 AD2d 649, 650 [2002]). The failure to comply with
deadlines and provide good-faith responses to discovery demands "impairs the
efficient functioning of the courts and the adjudication of claims" (see Gibbs v
St. Barnabas Hosp., 16 NY3d at 81; Kihl v Pfeffer, 94 NY2d at 123). The Court
of Appeals has also pointed out that "[c]hronic noncompliance with deadlines
breeds disrespect for the dictates of the Civil Practice Law and Rules" (Gibbs
v St. Barnabas Hosp., 16 NY3d at 81), and has declared that "[i]f the credibility
of court orders and the integrity of our judicial system are to be maintained, a
litigant cannot ignore court orders with impunity" (Kihl v Pfeffer, 94 NY2d at
123; see generally Cadichon v Facelle, 18 NY3d 230 [2011]).

Arpino v. FJF & Sons Elec., supra, 102 A.D.3d 201, 207-208 (2012), citing Gibbs v. St.

Barnabus Hosp., 16 NY3d 74, 81 (2010).

25. In the present case, defense counsel is attempting to disclose non-party witnesses Henry

Bravo, Bernard Mulligan and Luis Arcenteles more than five years after the filing of the Note

of Issue and a little more than one month before the scheduled start of the trial on November

1, 2023. This is the epitome of trial by ambush. Thus, in accordance with the Appellate

Division’s holding in Arpino, supra, these witnesses should be precluded from testifying at

trial.
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B. Defendants’ experts Dr. Greenwald and Dr. Zaumeyer should be precluded from
testifying where their disclosures fail to provide reasonable detailed facts and opinions,
and are untimely made on the eve of trial.

26. In addition, defense counsel has just now served undersigned counsel with multiple expert

witness disclosures, including the following:

(a) Expert Disclosure of Brian D. Greenwald, M.D. dated September 13, 2023 (see Exhibit
“G”);

(b) Expert Disclosure of David J. Zaumeyer, Ph.D, dated September 13, 2023
(Economist)(see Exhibit “H”); and

(d) Expert Disclosure of Bernard Lorenz, P.E., dated September 22, 2023 (engineer)(see
Exhibit “L”).

27. CPLR §3101(d), “Scope of Disclosure,” provides, in pertinent part, that:

Experts. (i) Upon request, each party shall identify each person
whom the party expects to call as an expert witness at trial and shall
disclose in reasonable detail the subject matter on which each expert is
expected to testify, the substance of the facts and opinions on which
each expert is expected to testify, the qualifications of each expert
witness and a summary of the grounds for each expert's opinion.

CPLR § 3101(d)(emphasis added).

28. Case law has interpreted “reasonable detail” to hold that preclusion is warranted where

responses to disclosure are “so general and nonspecific that the [other party] has not been

enlightened to any appreciable degree about the content of this expert's anticipated

testimony..." In the Matter of Dumont, 2004 NY Slip Op 50033(U) (NY 1/14/2004), 2004

NY Slip Op 50033, 1956TT443. (N.Y. Jan 14, 2004); citing Chapman v. New York, 189

A.D. 2d 1075 (1993); Syracuse v. Diao, 272 A.D.2d 881 (4th Dep't, 2000)."
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31, Even a cursory review of defendant’s Expert Disclosures for Dr. Greenwald and Dr.

Zaumeyer reveals that they are deficient on their face for failing to include reasonable detail

as to the substance of the facts and opinions to which these experts will testify.

32. With respect to defendants’ “CPLR § 3101(d) Expert Witness Disclosure” for Dr.

Greenwald dated September 13, 2023, while the disclosure identifies Dr. Greenwald, and

provides his qualifications and the subject matter of his testimony, the disclosure

nonetheless contains very little in terms of the particular facts and opinions to which he is

expected to testify.

33. For example, the disclosure states affirmatively that “Dr. Greenwald will testify that the

plaintiff did not sustain a traumatic brain injury as a result of the accident of April 27,

2015,” but is very vague and non-committal as to the factual basis of Dr. Greenwald’s

opinion.

34. The disclosure goes on to state that Dr. Greenwald “may” testify as to the absence of any

indication of head trauma but does not provide any particular detail as to the factual basis

for any such testimony. The disclosure also states that Dr. Greenwald will “testify

regarding the plaintiff’s alleged symptomatology” in support of his opinion, but provides

no detail whatsoever as to what this alleged symptomatology consists of, and how it does

not support a finding that plaintiff suffered a traumatic brain injury.

35. In like fashion, Dr. Greenwald’s disclosure states that he will “testify that the plaintiff’s

alleged behavioral and cognitive issues, if real, are related to an underlying and unrelated

psychiatric or psychological disorder or the consequences of taking the wrong

medications,” but fails to identify with particularity the nature of the purported disorder
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or to identify with any particularity the medications that are purportedly causing

behavioral or cognitive issues in the plaintiff.

36. The disclosure goes on to state that “Dr. Greenwald is expected to give testimony with

regard to all records, documents and information in the record, reasonably expected to

become part of the record, and/or being of the type relied upon [by] physicians in the care

and treatment of their patients.” Again, however, no particularity is provided with

respect to the records he will testify about, or how they will purportedly support his

opinion.

37. As such, Dr. Greenwald’s disclosure is “so general and nonspecific that the [plaintiff] has

not been enlightened to any appreciable degree about the content of this expert's

anticipated testimony..." In the Matter of Dumont, supra, 2004 NY Slip Op 50033(U) (NY

1/14/2004), 2004 NY Slip Op 50033, 1956TT443. (N.Y. Jan 14, 2004).

38. This, coupled with the disclosure of Dr. Greenwald as an expert one month before trial,

effectively constitutes unfair surprise and trial by ambush.

39. The disclosure of defendants’ expert economist, Dr. Zaumeyer, is quite literally devoid of

any opinions, and contains only reference to various subject matters about which he is

expected to testify.

40. It states that he “is expected to testify, among other things, about the plaintiff’s alleged

wage and benefits loss based on his review of records and information . . . and his

disagreement concerning the opinions and economic loss projections of the plaintiff’s

economist . . .”

41. As such, while the disclosure provides the subject matter of the witness’s testimony, it

does not provide the witness’s actual opinion, nor does it provide the substance of the
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facts and opinions as to why the witness disagrees with plaintiff’s economist, and

therefore fails to “enlighten to any appreciable degree about the content of this expert’s

anticipated testimony.” In the Matter of Dumont, supra.

C. Defendants’ expert Dr. Sze should be precluded from testifying as to new opinions
contained in his “supplemental” disclosure.

42. Defendants previously disclosed Dr. Gordon Sze, a radiologist, on or about December 6,

2019 (see Exhibit “J”), and have lately made a “supplemental” disclosure with respect to Dr.

Sze on September 13, 2023 (see Exhibit “I”)..43. The so-called “supplemental” disclosure

fails to include a report detailing Dr. Sze’s findings, with the sum and substance of Dr. Sze’s

opinions merely set forth within the body of the exchange.

43. Moreover, while titled a “Supplemental” exchange, it is clearly not a supplement to the

original, as it is substantially different from the original and adds new anticipated opinions of

Dr. Sze.

44. More specifically, Defendants’ new expert exchange concerning Dr. Sze opines, for the

first time, regarding Plaintiff’s right shoulder injury. The original expert exchange was silent

as to Mr. Lima’s right shoulder injury, which was originally pled in Plaintiff’s Bill of

Particulars dated September 1, 2016 (See Exhibit “L 2.

45. Defendants were clearly on notice of Plaintiff’s right shoulder injury as early as at the

time of service of the Bill of Particulars and as such cannot offer any credible excuse why

now, at this late juncture, the Court should permit Dr. Sze to offer any opinion as to Mr.

Lima’s right shoulder injury.

2
Plaintiff’s Bill of Particulars pled, “right shoulder joint effusion with subdeltoid; distal subscapularis and
distal supraspinatus tendinosis.”
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46. Additionally, Defendants’ new exchange concerning Dr. Sze sets forth additional

opinions regarding Mr. Lima’s injuries to his head, cervical and lumbar spine.

42. The original expert report stated that Dr. Sze would dispute Plaintiff’s head, cervical and

lumbar injuries, asserting that his film review led him to conclude that the studies are not

consistent with a traumatic brain injury, and the cervical and lumbar spine images do not

reveal evidence of a new traumatic injury.

47. The new exchange now states a myriad of previously undisclosed opinions, including,

inter alia: (a) the appearance and characteristics of typical brain bleeds and lesions; (b) grey

matter-white matter junction; (c) post-infectious, demyelinating and traumatic etiologies; (d)

volumetric calculations involving the Plaintiff’s Neuroquant analysis; (e) new opinions

regarding volumetric analysis; (f) a purported computer volumetric error within Plaintiff’s

Neuroquant analysis; (g) opinions regarding the purported technical difficulties associated

with Neuroquant studies; (h) fractional anisotropy calculations in Neuroquant studies; (i) new

assertions of observing cervical disc bulges and dessication at C4-6 and dessication at T1-2;

(j) new claims that Mr. Lima’s lumbar MRI films show a bulge at L4-5 with a superimposed

herniation; (k) new assertions of the presence of endplate degenerative changes at the S1

vertebra; (l) references to purported criteria (none of which are stated) which can be used to

ascertain whether the accident played a role in imaging - all without any references to any

data or methodologies to support his opinions.

48. As such, Dr. Sze’s purported “supplemental” expert exchange is not really

“supplemental” at all. It is not based on any new information but rather on information that

Dr. Sze had in his possession at the time of his original disclosure as an expert witness on

December 6, 2019. This new expert exchange, served on the eve of trial, is nothing more
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than an attempt to “sandbag” the Plaintiff, so that Mr. Lima’s experts will have inadequate

time provide a detailed rebuttal to Defendants’ new assertions. This results in extreme

prejudice to the Plaintiff and should not be countenanced by this Court.

48. Moreover, Defendants retained Dr. Sze well before their first CPLR §3101(d) exchange

of him in December 2019. Since that time nearly four years have passed. The only logical

explanation is that Defendants consciously and willfully held back the opinions - as now set

forth in this purported “supplemental” late exchange in an effort to prejudice plaintiff at trial.

D. Defendants’ expert Bernard Lorenz, P.E., should be precluded from testifying at
trial because his untimely disclosure one month before trial is highly prejudicial to
plaintiff.

49. Finally, in keeping with an ongoing pattern of voluminous late-filed discovery

compliance and expert disclosures, defendants disclosed an engineer, Bernard Lorenz, P.E.

on September 22, 2023. See Exhibit “”M” (Expert Disclosure for Bernard Lorenz, P.E. dated

9/22/2023).

50. The disclosure of Mr. Lorenz is presumably made in rebuttal of the proposed testimony

of plaintiff’s expert, Walter Konon, P.E., who was disclosed more than three years ago on

March 13, 2020. (See Exhibit “N” Expert Disclosure for Walter Konon, P.E. dated March

13, 2020).

51. It is apparent that the disclosure of Mr. Lorenz is part of a calculated 11th hour strategy to

inundate the plaintiff with post-note-of-issue discovery and expert exchanges which could

and should have been made years ago.
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E. Defendants should be precluded from offering the testimony of Dr. Greenwald,
Dr. Zaumeyer, Dr. Sze and engineer Lorenz

52. As previously noted, CPLR §3101(d)(1)(i) provides that, “upon request, each party

shall identify each person whom the party expects to call as an expert witness at trial

and shall disclose in reasonable detail the subject matter on which each expert is

expected to testify, the substance of the facts and opinions on which each expert is

expected to testify, the qualifications of each expert witness and a summary of the

grounds for each expert’s opinion.”

53. The Appellate Division has found that a party waiting until three weeks before trial to

disclose an expert who had been retained six years before trial raises an inference of

intentionally withholding the information. See, Kassis v. Teacher's Ins. & Annuity

Ass'n, 258 A.D.2d 271 (1st Dep't 1999).

54. There, the Court found that the trial court properly limited the testimony of plaintiffs’

expert. Although plaintiffs had ample opportunity to demonstrate good cause for their

delay in disclosing the expert, plaintiffs failed to do so: the court noted that plaintiffs

“belatedly” furnished the information only in their supplemental omnibus disclosure.

The Court determined that Plaintiffs’ failure to disclose the expert until three weeks

before trial where one of the experts had been retained six years before disclosure gave

rise to an inference of intentional withholding.

55. In McCarthy v. Handel, 297 A.D.2d 444 (3d Dep't 2002), a products liability action

that involved several successful pre-trial challenges to the sufficiency of plaintiff’s

expert disclosures, plaintiff's expert was properly precluded from testifying as to

alleged defects in motorcycle where plaintiff failed to provide information about

expert's proposed testimony.
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56. Similarly, the Court in Qian v. Dugan, 256 A.D.2d 782 (3d Dep't 1998) held that the

Supreme Court properly precluded plaintiff’s expert’s testimony about the value of art

works. Despite knowing defendant’s objections to the adequacy of plaintiff’s expert

disclosure, plaintiff made no attempt to fix the defects before trial. The Court held that

the plaintiff's failure to make any effort to augment his responses, even after having

been apprised of defendant's challenge to the level of detail provided, warranted the

court’s finding that plaintiff’s lack of compliance was "intentional or willful.” 3

57. Even in the absence of such intentional withholding, failure to comply with the CPLR

3101(d)(1)(i) disclosure requirements may result in monetary sanctions against counsel

for the offending party. See Aversa v. Taubes, 194 A.D.2d 580, 598 N.Y.S.2d 801 (2d

Dept. 1993).

58. Defendants’ exchanges fail to properly apprise the Plaintiff of the sum and substance

of the opinions offered by Drs. Greenwald and Zaumeyer. They lack the specificity

required by CPLR §3101(d) as the exchanges lack a report, and the exchange notices

fail to specifically state the substance of the facts and opinions on which each expert is

expected to testify, along with any sources or methodologies utilized by the experts in

formulating their opinions.

See also, Rassaei v. Kessler, 252 A.D.2d 578, 676 N.Y.S.2d 217 (2d Dept. 1998)(holding
that the trial court has discretion to preclude the party from offering expert testimony where
their exchange was provided on the eve of trial, unless the party can show good cause for
the failure, or that he or she did not intentionally withhold disclosure); Cramer v. Spada,
203 A.D.2d 739, 610 N.Y.S.2d 662 (3d Dept. 1994)(wherein the Court found the trial court
did not abuse its discretion in precluding the plaintiff from offering an expert at trial when
he served his expert exchange five days prior to trial and failed to show he did not
intentionally withhold disclosure or provide any good cause for not serving his notice
earlier).
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59. Moreover, Dr. Zaumeyer’s expert exchange is completely lacking any data, sources,

calculations and specific quantifications to properly apprise the Plaintiff of his opinion,

other than the belief that he disagrees with the calculations and opinions set forth by

Plaintiff’s expert economist.

60. However, even if the Court was to find that the language within Defendants’ exchanges

was sufficient, Defendants cannot provide any reasonable excuse as to why they waited

until the eve of trial to serve their expert exchanges.

61. Defendants have been on notice of Plaintiff’s injuries since 2016 and have possessed

Plaintiff’s CPLR §3101(d) expert exchanges since 2020. In the case of Dr. Sze, it is

clear that Defendants first retained him as an expert on this case prior to December

2019. As such, they were well aware of Dr. Sze’s review and opinions for the past

nearly four years.

62. The Court can only conclude that their service of his new expert report now, in

September 2023, constituted a willful and purposeful withholding of his disclosure.

Both that willful withholding, combined with their willful late disclosures of Dr.

Greenwald and Dr. Zaumeyer, demonstrate a pattern and practice by Defendants in

attempting to prejudice the Plaintiff as the parties reach the scheduled trial date on

November 1, 2023.

63. This case was previously mediated, and the parties most recently appeared before the

Court for a settlement conference on July 10, 2023. At no time during that Conference

did Defendants apprise our office or the Court of their intent to serve the

aforementioned expert exchanges. Clearly, their lack of prior notice was strategic and

an attempt to prejudice Plaintiff by offering late expert exchanges crafted to rebut the
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opinions offered by Plaintiff’s previously served experts and resulting in Plaintiff’s

inability now to timely rebut. This gamesmanship should not be rewarded by the Court.

CONCLUSION

64. As outlined above, plaintiff has clearly demonstrated that the defendants’ late

disclosure of non-party witnesses Henry Bravo, Bernard Mulligan and Luis Arcenteles

more than five years after the filing of the Note of Issue and a little more than one month

before the scheduled start of the trial on November 1, 2023, should result in preclusion of

these witnesses from testifying at trial, where these witnesses were never identified by

name in defendant’s Responses to Combined Demands, and were not mentioned in

defendants’ documentary compliance of the same date.

65. Plaintiff has also demonstrated that Defendants’ newly served CPLR §3101(d) expert

exchanges are inadequate and untimely, their identification of non-party witnesses they

intend to call at trial is untimely and in violation of the Court’s prior orders, and that to

permit the Defendants to move forward with this untimely discovery, in clear violation of

the Court’s prior orders, will result in extreme prejudice and disadvantage to the

Plaintiff’s case.

66. No prior application for this relief has been made.

67. For the forgoing reasons, it is respectfully requested that this Court grant plaintiff’s

application for an Order pursuant to CPLR §3126 to preclude: (1) non-party witnesses

Henry Bravo, Bernard Mulligan and Luis Arcenteles, on the ground that said witnesses were

disclosed on the eve of trial and more than 5 years after the Note of Issue was filed; and (2)
FILED: KINGS COUNTY CLERK 10/23/2023 05:34 PM INDEX NO. 1805/2016
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 10/23/2023

defendants’ late-disclosed expert witnesses, Dr. Gordon Sze, Dr. Brian Greenwald, Dr.

David Zaumeyer and Bernard Lorenz, P.E., on the grounds that the expert disclosures

provided by defense counsel for these experts: (i) are unduly vague and fail adequately to

disclose the substance of the facts and the opinions of said experts; and/or (ii) fail to provide

any reports supplementing said disclosures that detail the substance of the facts and opinions

of said experts; and/or (iii) are untimely made on the eve of trial.

WHEREFORE, it is respectfully requested that this motion be granted in its entirety,

and that for such other and further relief be granted as to this Court seems just and proper,

including the costs of this motion.

Dated: Port Chester, New York
September 22, 2023

___________________________
By: Richard L. Grant, Esq.
Ronai & Ronai LLP
Attorneys for Plaintiff
34 Adee Street
Port Chester, New York 10573
(914) 824-4777

TO:

Fabiani Cohen & Hall, LLP
Attorneys for Defendants
570 Lexington Avenue, 4th Floor
New York, NY 10022
FILED: KINGS COUNTY CLERK 10/23/2023 05:34 PM INDEX NO. 1805/2016
NYSCEF DOC. NO. 188 RECEIVED NYSCEF: 10/23/2023

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
Index No. 1805/2016
-----------------------------------------------------------------

MIGUEL LIMA and MELANIE SOLES,
Plaintiff,

-against-

HY 38 OWNER LLC, HY 39 OWNER LLC, HY 38-39
LIO LLC, ELB HOLDINGS, LLC, ILIAD REALTY GROUP,
ILIAD 38, LLC and MONADNOCK CONSTRUCTION, INC.,

Defendants.

- - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

NOTICE OF MOTION

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

RONAI & RONAI, L.L.P.
Attorneys for Plaintiff
The Ronai Building
34 Adee Street
Port Chester, New York 10573
(914) 824-4777

Case Info

Judge

Wayne Saitta Track Judge’s New Case

Case No.

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Document Filed Date

October 23, 2023

Case Filing Date

February 16, 2016

County

Parties

COHEN, STEPHEN M Attorney for the Defendant
CORDELLA, PAUL RAYMOND Attorney for the Plaintiff
ELB HOLDINGS LLC Defendant
FABIANI, MICHAEL S. Attorney for the Defendant
GEIDER, JONATHAN F Attorney for the Defendant
GRANT, RICHARD LOWELL Attorney for the Plaintiff
HY 38-39 LIO LLC Defendant
ILIAD38 LLC Defendant
ILIAD REALTY GROUP Defendant
MARTIN, ROBERT DAVID Attorney for the Defendant
Melanie Soles Plaintiff
Miguel Lima Plaintiff
MONADNOCK CONSTRUCTION INC Defendant
PARIS, JASON L Attorney for the Plaintiff
RONAI, HOLLY OSTROV Attorney for the Plaintiff
DAVID FRANKLIN Attorney
MICHAEL BARTON Attorney
TODD HERBST Attorney
NEAL EISEMAN Attorney
TIMOTHY LAVIN Attorneys for Defendants
DONALD MUNSON Attorney

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Document for Miguel Lima, Melanie Soles v. Hy 38 Owners Llc, Hy 39 Owner Llc, Hy 38-39 Lio Llc, Elb Holdings Llc, Iliad Realty Group, Iliad38 Llc, Monadnock Construction Inc

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