The opinion
Melendez v Pro Sports & Entertainment, Inc.
2024 NY Slip Op 34141(U)
November 19, 2024
Supreme Court, New York County
Docket Number: Index No. 114296/2005
Judge: Emily Morales-Minerva
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
State and local government sources, including the New
York State Unified Court System's eCourts Service.
This opinion is uncorrected and not selected for official
publication.
FILED: NEW YORK COUNTY CLERK 11/25/2024 11:59 AM INDEX NO. 114296/2005
NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 11/25/2024
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. EMILY MORALES-MINERVA PART 42M
Justice
-------------------.X INDEX NO. 114296/2005
CARLOS MELENDEZ,
MOTION DATE May 03, 2024
Plaintiff,
- V-
PRO SPORTS & ENTERTAINMENT, INC.,THE ROUSE
DECISION & ORDER
COMPANY OF NEW YORK, LLC,SOUTH STREET
PRE-TRIAL MOTION IN LIMINE
SEAPORT LIMITED PARTNERSHIP, APPLE INDUSTRIAL
N0.01
DEVELOPMENT CORP., NEW YORK CITY ECONOMIC
DEVELOPMENT CORPORATION, THE CITY OF NEW
YORK
Defendant.
-------------------X
APPEARANCES:
Hach & Rose, LLP, New York, NY (Evan Bane, Esq., and Adam
Roth, Esq., of counsel), for plaintiff.
Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, NY
(Mathew Ross, Esq., of counsel) for defendants.
HON. EMILY MORALES-MINERVA, J.S.C.:
In this labor law action, pending almost twenty years,
plaintiff filed a pre-trial motion in limine, dated May 03,
2024, seeking an order precluding the expert witnesses of
defendants from testifying beyond "the 'four corners' of their
reports" (New York State Court System Electronic Filing System
[NYSCEF] Doc. No. 94, at 1). Defendants submit opposition to
plaintiff's application, arguing, among other things, that no
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FILED: NEW YORK COUNTY CLERK 11/25/2024 11:59 AM INDEX NO. 114296/2005
NYSCEF DOC. NO. 136 RECEIVED NYSCEF: 11/25/2024
reason exists to preemptively restrict the testimony of their
experts.
All parties appeared, by counsel, for oral argument on this
pre-trial motion, which was held on November 07, 2024, at
11:00 A.M., in Part 42M, 111 Centre Street, New York, New York.
Following arguments, plaintiff rested on the supporting case law
as listed on page three of plaintiff's trial brief in support of
motion in limine, dated May 03, 2024 (id. Doc. No. 94, at 3,
para 8).
Now, upon consideration of the arguments and submissions on
this motion, the subject motion in limine is denied.
Nothing in the record suggest that defendants' expert
witnesses intend on testifying to facts or opinions outside of
their report or intends to discuss an ailment not mentioned in
their report. The cases plaintiff relies upon apparently
concern objections to expert testimony made during trial -- not
objections to testimony yet to be elicited -- as beyond the
scope or in contradiction to the expert's report (see Klempner v
Leone, 277 AD2d 287 [2nd Dept 2000] [providing that "absent a
showing of good cause," a medical expert's testimony should be
precluded if it contradicts or discusses conditions not
mentioned in the experts report]; see also Langhorne v County of
Nassau, 40 AD3d 1045 [2nd Dept 2007] [holding it was reversable
error to permit defense counsel to elicit testimony from
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defendant's expert that was both beyond the scope of his medical
report and inconsistent with the conclusions set forth in that
report]; Desert Storm Constr. Corp. v SSSS Ltd. Corp., 18 AD3d
421, 422 [2nd Dept 2005] [holding the trial court providently
exercised its discretion to preclude the defendants' expert from
testifying on a subject not included in pretrial disclosure
absent good cause shown for the absence of the pretrial
disclosure]}.
To the extent defendants rely on 1515 Summer St. Corp. v
Parikh, 13 AD3d 305 [1st Dept 2004], said case -- while holding
that the lower court properly precluded an expert from
testifying about matters not included in their disclosure
statement -- is factually blind as to when the party made the
motion. Further, the First Department in 1515 Summer St. Corp.
relied upon Matter of Richard S. (208 AD2d 750 [1st Dept 1994],
lv denied 86 NY2d 704 [1995]}, which is clearly distinguishable
from the facts presented.
In Matter of Richard, the proponent of the expert testimony
presented a list of experts to its adversary but did not
disclose therein any details as to the substance of the expert's
opinions or the grounds thereof (id. at 750-751). Finding that
said lack of disclosure impaired the other party in preparing
for the hearing, the First Department upheld the trial court's
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discretion to preclude the experts from providing any opinion
(id. at 751).
Finally, plaintiff also misplaces its reliance on the
Appellate Division, Fourth Department case Lidge v Niagra Falls
Mem. Med. Ctr. (17 AD3d 1033 [4th Dept 2005]). Unlike here, the
Lidge case involved a party's attempt to submit a new expert
disclosure statement at the eve of trial, which included
additional theories of negligence (id. at 1035). The Fourth
Department held that the trial court both properly precluded the
amendment to the initial disclosure and properly precluded the
expert from testifying beyond the original expert disclosure
(id. at 1035).
Of course, while plaintiff is unsuccessful in this pre-
trial motion, the court's holding herein prevents neither
plaintiff nor defendants from making objections at trial based
on governing rules of evidence.
Accordingly, it is
ORDERED that the plaintiff's motion in limine, dated May
03, 2024, is denied.
Date: November 19, 2024
J.S.C.
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