Majority
Contrary to the plaintiffs’ contention, the trial court providently exercised its discretion in precluding them from calling an expert radiologist to testify. The proffered explanation for failing to identify this witness until after the trial began was not based on good cause (see CFLR 3101 [d] [1] [i]; Lucian v Schwartz, 55 AD3d 687 , 688 [2008]; Caccioppoli v City of New York, 50 AD3d 1079 , 1080 [2008]).
The trial court properly admitted into evidence the reports of
The trial court should have prohibited counsel for the defendant Belinda Marquis from questioning an expert witness for the plaintiffs about a hypothetical pertaining to the probability of the infant plaintiff having both a pectus carinatum and fibromatosis, as the hypothetical was not based on facts supported by the evidence, nor from facts fairly inferable from the evidence (see Gilleo v Horton Mem. Hosp., 196 AD2d 569 , 570 [1993]). However, the error was harmless (see CPLR 2002; Kropf v New York Hosp., 212 AD2d 761 [1995]). The trial court’s comments about the hypothetical did not deprive the plaintiffs of a fair trial (see Figueroa v Maternity Infant Care Family Planning Project, Med. & Health Research Assn. of N.Y. City, 243 AD2d 424 [1997]).
The plaintiffs’ remaining contentions are without merit. Dillon, J.P, Florio, Chambers and Miller, JJ., concur.
Cases cited
- Lucian v. Schwartz 55 AD3d 687 at 688 p. 1046
- Caccioppoli v. City of New York 50 AD3d 1079 at 1080 p. 1046
- Murray v. Weisenfeld 37 AD3d 432 at 433 p. 1047
- Fanelli v. diLorenzo 187 AD2d 1004 at 1005 p. 1047
- Maxcy v. County of Putnam 178 AD2d 729 p. 1047
- Wilson v. Bodian 130 AD2d 221 at 229 p. 1047
- O'Shea v. Sarro 106 AD2d 435 at 437 p. 1047
- Gilleo v. Elizabeth A. Horton Memorial Hospital 196 AD2d 569 at 570 p. 1047
- Figueroa v. Maternity Infant Care Family Planning Project, Medical & Health Research Ass'n 243 AD2d 424 p. 1047