theCPLRblog

Not a business record: CPLR 4518 and a DVD

CPLR R. 4518 Business records

Lambert v Sklar, 2012 NY Slip Op 00755 (2nd Dept., 2012)

In opposition, the plaintiffs failed to raise a triable issue of fact. According to the deposition testimony of the decedent's widow, which was submitted by the defendants, she did not know the purpose of the payments identified in the check register. Moreover, even if the check register were the decedent's, it was inadmissible as a business record (see CPLR 4518[a]), and incompetent to prove that the corresponding checks were loans, rather than repayments of advances (see Matter of Roge v Valentine, 280 NY 268; Leask v Hoagland, 205 NY 171; Nappi v Gerdts, 103 AD2d 737; Shea v McKeon, 264 App Div 573; Bogatin v Brader, 243 App Div 856; Matter of Levi, 3 Misc 2d 746; In re Purdy's Will, 73 NYS2d 38 [Sur Ct 1947]; see also Nay v Curley, 113 NY 575, 577; Koehler v Adler, 78 NY 287). Given the plaintiffs failure to set forth admissible evidence raising a triable issue of fact as to whether the defendants made any material misrepresentations to the public administrator, the Supreme Court properly granted the defendants' motion for summary judgment, in effect, dismissing the cause of action alleging fraud, and, in effect, properly denied the plaintiffs' cross-motion for summary judgment, in effect, on the cause of action alleging fraud.

National Ctr. for Crisis Mgt., Inc. v Lerner, 2012 NY Slip Op 00758 (2nd Dept., 2012)

Additionally, the Supreme Court properly declined to consider a DVD recording submitted by the defendant in support of her motion for summary judgment, as it cannot be concluded that the video recording truly and accurately represented what the defendant purported it to show (see Zegarelli v Hughes, 3 NY3d 64, 69; see also People v Patterson, 93 NY2d 80, 85; cf. People v Byrnes, 33 NY2d 343, 349).

A duty to read

Vulcan Power Co. v Munson, 2011 NY Slip Op 07917 (1st Dept., 2011)

Defendants-appellants and defendant Munson, their representative, signed the stockholders agreement without reading it. Defendants-appellants, in fact, never requested a copy of the agreement, depending instead on the representations of Munson, who, in turn, depended upon the representations of people whose interests were at odds with his and who he believed to be untrustworthy. As a result, defendants are bound by the terms of the stockholders agreement (see Sorenson v Bridge Capital Corp., 52 AD3d 265, 266 [2008], lv dismissed 12 NY3d 748 [2009]; see also Pimpinello v Swift & Co., 253 NY 159, 162-163 [1930]). Defendants' argument that the holding in Sorenson does not apply to signers of loose signature pages is without merit. A signer's duty to read and understand that which it signed is not "diminished merely because [the signer] was provided with only a signature page" (Hotel 71 Mezz Lender LLC v Falor, 64 AD3d 430, 430 [2009]; see also Friedman v Fife, 262 AD2d 167, 168 [1999]).

Defendants' failure to read the stockholders agreement also precludes its fraud in the execution defense (see First Natl. Bank of Odessa v Fazzari, 10 NY2d 394, 397-398 [1961] [finding a non-English speaker negligent for not asking his wife to read a document of obvious legal import, especially where he had done so in the past]; see also Sorenson, 52 AD3d at 266 ["negligent failure to read [an] agreement [precludes the assertion of] justifiable reliance, an essential element of fraud in the execution"]).

Kolmar Ams., Inc. v Bioversal Inc., 2011 NY Slip Op 07916 (1st Dept., 2011)

Plaintiff's attempt to insert ambiguity into the applicable tax clause contained in the General Terms and Conditions (GTC) of the agreement between the parties which required plaintiff to pay defendant all taxes "paid or incurred by [defendant] directly or indirectly with respect to the product sold," is unpersuasive. "A written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Excel Graphics Tech. v CFG/AGSCB, 1 AD3d 65, 69 [2003], lv dismissed 2 NY3d 794 [2004]). Contrary to plaintiff's argument, the language employed in the contract should not be modified by, or read together with, the "Title and Risk of Loss" provision. Nor should the term "indirectly" be read narrowly as such a reading would render the counterpart term covering taxes paid "directly," meaningless, and run afoul of the "cardinal rule of construction that a court adopt an interpretation that renders no portion of the contract meaningless" (Diamond Castle Partners v IAC/Interactive Corp., 82 AD3d 421, 422 [2011]).

Article 2 of the UCC does not authorize the introduction of parole evidence to vary the plain meaning of the GTC tax clause. Extrinsic evidence does not merely "explain" or "supplement" a contractual term within the meaning of UCC 2-202 when the purported explanation or supplement actually contradicts the unambiguous contractual terms (see UCC 2-202; Intershoe, Inc. v Bankers Trust Co., 77 NY2d 517, 523 [1991]).

The motion court's grant of partial summary judgment while directing that an inquest be held after discovery is completed was a provident exercise of its "wide discretion" (see Robert Stigwood Org. v Devon Co., 44 NY2d 922, 923-24 [1978]). Pursuant to the motion court's order, at the inquest, defendant will bear the burden of proving its damages, i.e., the amount it paid or incurred, directly or indirectly, with respect to Florida fuel taxes in connection with the subject contract.

Proof of Prior Accident

McDonald v Long Is. Rail Rd., 2010 NY Slip Op 07315 (App. Div., 2nd 2010)

Since a new trial on the issue of liability is required, we note that evidence of other gap-related accidents at Long Island Rail Road stations can only be properly admitted upon a showing that those accidents occurred under substantially the same conditions as the subject accident (see Hyde v County of Rensselaer, 51 NY2d 927, 929; Kane v Triborough Bridge & Tunnel Auth., 64 AD3d 544, 545). Contrary to the defendant's contention, however, the testimony elicited at the instant trial regarding its knowledge that "issues" existed regarding gaps between station platforms and train doors was not tantamount to the admission of testimony of prior accidents.

The bold is mine.

Reconcile This: Hearsay

LaVecchia v Bilello, 2010 NY Slip Op 06363 (App. Div., 2nd, 2010)

The requisite elements of proof in a dental malpractice action are a deviation or departure from accepted standards of dental practice, and evidence that such departure was a proximate cause of the plaintiff's injury (see Koi Hou Chan v Yeung, 66 AD3d 642; Terranova v Finklea, 45 AD3d 572; Clarke v Limone, 40 AD3d 571). Therefore, on a motion for summary judgment, the defendant dentist has the initial burden of establishing the absence of any departure from good and accepted practice, or that the plaintiff was not injured thereby (see Koi Hou Chan v Yeung, 66 AD3d at 642; Terranova v Finklea, 45 AD3d at 572; Williams v Sahay, 12 AD3d 366, 368). "To sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's bill of particulars" (Koi Hou Chan v Yeung, 66 AD3d at 643; see Ward v Engel, 33 AD3d 790, 791; Johnson v Ladin, 18 AD3d 439).

Here, as the Supreme Court correctly determined, the defendant Raphaelson Dental Associates (hereinafter RDA) failed to make a prima facie showing of its entitlement to judgment as a matter of law. RDA's dental expert relied upon, inter alia, an unsworn dental report by Dr. Jenal and dental records that were not annexed to the motion (see Farmer v City of New York, 25 AD3d 649, 650). Moreover, the affidavit of RDA's dental expert was conclusory, and failed to rebut all of the specific allegations of dental malpractice set forth in the plaintiff's verified bill of particulars (see Terranova v Finklea, 45 AD3d at 572; Ward v Engel, 33 AD3d at 791). The expert affirmation submitted by the defendant Rita Marie Bilello likewise was insufficient to establish RDA's prima facie entitlement to judgment as a matter of law. Accordingly, the Supreme Court properly denied [*2]RDA's motion, regardless of the sufficiency of the plaintiff's opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Koi Hou Chan v Yeung, 66 AD3d at 644).

Compare this with Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140(A) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

Moreover, we note that, while defendant's peer review doctor may have considered medical records received from other providers who had rendered treatment to the assignor, defendant was not seeking to use such records to establish the truth of the facts set forth therein. Defendant was not attempting to prove that Rafailova was injured as documented in her medical records, or that she was treated as set forth in those records. Instead, defendant's peer review doctor simply opined that, assuming the facts set forth in Rafailova's records were true, the treatment allegedly provided was not medically necessary. Therefore, as defendant was not using the underlying medical records for their truth, such records were not being used for a hearsay purpose (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]). This is distinguishable from a situation in which a medical expert relies upon medical records to establish the fact of an injury (see e.g. Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]). Consequently, plaintiff's argument that defendant failed to establish the reliability of the underlying medical records in support of its claim that the treatment provided was not medically necessary is irrelevant.

Can these two decisions be reconciled? For those of you that don't practice in the Civil Court, this might not mean anything to you. But you never know if and when this issue will creep into Supreme Court. For more background on the issue, read THIS, THIS, and THIS.¹

Also of interest is the fact that the Urban decision is an unreported decision, which could be the Appellate Term's way of saying, "hey, this is only for no fault."

Finally, I'm by the time you all got to this point in the post you were wondering whether you have been using "i.e." or "e.g." appropriately. Here you go:

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1. The last one is a NYLJ article and you need to pay to play, however, if the authors woudl post the article on their website, I could put a link to it and make everyone look smart.

Parol Evidence

Matthius v Platinum Estates, Inc., 2010 NY Slip Op 04965 (App. Div., 2nd, 2010)

JAC's contention that it was not obligated to indemnify Grymes Hill, Cullota, Ricca, and Platinum because pursuant to the merger clause in the January 17th agreement, that agreement superseded the prior indemnification agreement, is without merit. The purpose of a merger clause is to require full application of the parol evidence rule in order to bar the introduction of extrinsic evidence to alter, vary, or contradict the terms of a written agreement (see Jarecki v Shung Moo Louie, 95 NY2d 665, 669; Matter of Primex Intl. Corp. v Wal-Mart Stores, 89 NY2d 594, 599). Where a valid contract is incomplete, extrinsic evidence is admissible to complete the writing if it is apparent from an inspection of the writing that all the particulars of the agreement are not present, and that evidence does not vary or contradict the writing (see Valente v Allen Shuman & Irwin Richt, D.P.M., P.C., 137 AD2d 678).

Here, the January 17th agreement was incomplete and ambiguous. It contained a general provision requiring JAC to provide insurance, but did not state the amount of insurance coverage or the parties to be named as insureds. Therefore, evidence of the indemnification agreement, which contained specific provisions regarding the amount of insurance to be provided and the parties to be insured, was admissible to resolve these ambiguities. The indemnification agreement however, did not vary, alter, or contradict any terms in the January 17th agreement and, thus, remained enforceable (see Matter of Primex Intl. Corp. v Wal-Mart Stores, 89 NY2d 594).

Furthermore, the January 17th agreement set forth the work to be performed by JAC, but did not specifically address the issue of indemnification. Therefore, Grymes Hill and Platinum could present evidence to prove the existence of the agreement in which JAC agreed to indemnify them (see Elbroji v 22 E. 54th St. Rest. Corp., 67 AD3d 957). Since the indemnification agreement and the January 17th agreement dealt with different subject matter, the merger clause did not extinguish the indemnification agreement (see Gordon v Patchogue Surgical Co., 222 AD2d 651).

By obtaining insurance and naming Grymes Hill as an insured pursuant to the indemnification agreement, JAC demonstrated its intent to be held to that agreement.

The bold is mine.

Best Evidence Rule Objection was Properly Overruled

Madison-68 Corp. v Malpass, 2009 NY Slip Op 06154 (App. Div., 1st, 2009)

Plaintiff's objection, made under the best evidence rule, to the admission of the lease rider was properly overruled because it had offered into evidence a copy of the same document. The J.H.O. at times cut off questioning, but did so in an evenhanded manner to expedite the trial, never amounting to prejudicial error (see Lewis v Port Auth. of N.Y. & N.J., 8 AD3d 205, 206 [2004]). Nor was the judgment against the weight of the evidence, since the case essentially turned on the parties' competing oral testimony. The issue of the prevailing party notwithstanding, it was error for the J.H.O. to determine that defendants were entitled to an award of attorneys' fees. In Oxford Towers Co., LLC v Wagner (58 AD3d 422 [2009]), this Court held that an identical lease provision was not covered by Real Property Law § 234.

The bold is mine.

Witnesses and disclosure

Guzman v Spring Cr. Towers, Inc., 2009 NY Slip Op 05508 (App. Div., 1st, 2009)

Contrary to the plaintiff's contention, the Supreme Court properly admitted into evidence photographs of a barrier similar to the barrier used at the construction site near the location of the plaintiff's accident, since there was testimony that the photograph fairly and accurately represented the barrier used at the time of the accident (see Shalot v Schneider Natl. Carriers, Inc., 57 AD3d 885, 886; Cubeta v York Intl. Corp., 30 AD3d 557, 561; Kartychak v Consolidated Edison of N.Y., 304 AD2d 487).

Additionally, the trial court did not improvidently exercise its discretion in allowing two emergency medical technicians to testify, despite the defendants' failure to include their names on a witness list. There was no evidence that this omission was willful, and any prejudice to the plaintiff was minimal since the plaintiff had access to the ambulance report and the technicians (see Castracane v Campbell, 300 AD2d 704, 706; Alber v State of New York, 252 AD2d 856, 857).

Islar v New York City Bd. of Educ., 2009 NY Slip Op 05609 (App. Div., 1st, 2009)

The court exercised its discretion in a provident manner in imposing a lesser sanction than that requested (see Kugel v City of New York, 60 AD3d 403 [2009]). The record indicates that the missing witness statements from defendants' internal investigation of the alleged sexual assault of infant plaintiff were not crucial to the prosecution of plaintiffs' claims, inasmuch as each of the witnesses was available for deposition, and other investigative proof, including police records, suggested that the witness' statements were not supportive of plaintiffs' claims (see Jordan v Doyle, 24 AD3d 107 [2005], lv denied 7 NY3d 705 [2006]). Although constituting hearsay, the court properly relied, in part, on police investigative records in deciding the motion.

Furthermore, defendants' conduct in not providing a definitive answer as to the availability of the witness statements during an 18-month period, albeit during which 8 discovery orders were issued, did not amount to willful and contumacious conduct on defendants' part, since defendants could not locate the statements despite a thorough search for them. Even assuming that plaintiffs met their initial burden of showing that defendants' conduct was willful and contumacious, defendants offered a reasonable excuse for their failure to comply with discovery orders, namely that the statements could not be located (see Palmenta v Columbia Univ., 266 AD2d 90 [1999]).

The bold is mine.

Experts, Qualificaton, Evidence, and Hearsay

County of Nassau v Fuentes, 2009 NY Slip Op 05843 (App. Div., 2nd, 2009)

In support of his motion for summary judgment dismissing the complaint, the defendant made a prima facie showing of entitlement to judgment as a matter of law by submitting an affidavit in which he denied receiving notice, prior to the commencement of this action, that his vehicle might be subject to a forfeiture action (see Nassau County Administrative Code § 8-7.0[g][4][a]; County of Nassau v Bassen, 14 Misc 3d 633; see generally Alvarez v Prospect Hosp., 68 NY2d 320). However, in opposition to that showing, the plaintiff, County of Nassau, raised a triable issue of fact by producing copies of a "Vehicle Seizure Notice," purportedly signed by the defendant at the time of his arrest for the underlying offense, and a return receipt card, also purportedly signed by the defendant, acknowledging receipt of a letter the County allegedly sent to him prior to the commencement of this action. Both documents advised that the subject vehicle might be the subject of a forfeiture action. While we conclude that the County's showing was sufficient to raise an issue of fact warranting denial of the defendant's motion, contrary to the County's contention, it did not warrant the granting of that branch of its cross motion which was for summary judgment on the complaint, as the genuineness of the defendant's purported signatures on the documents described above presents an issue of fact (see Seoulbank, N.Y. Agency v D & J Import & Export Corp., 270 AD2d 193, 194; Dyckman v Barrett, 187 AD2d 553, 555).

Saunders v 551 Galaxy Realty Corp., 2009 NY Slip Op 05763 (App. Div., 2nd, 2009)

The defendants failed to submit sufficient evidence in admissible form to make a prima facie showing of entitlement to judgment as a matter of law. The defendants offered no evidence, other than inadmissible hearsay, as to why the air conditioner fell from the window. The defendants failed to show that they were not negligent in their initial inspection of the air conditioner's installation. No evidence was provided as to the defendants' general policy on inspecting and maintaining air conditioning units installed on the premises, and the defendants failed to show that, as the owners of the property, they relinquished exclusive control of the apartment and the window from which the air conditioner fell, to a tenant who had no lease, thus absolving them of liability (see Spanbock v Fifty Fourth St. Condominium, 3 AD3d 395). Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint without considering the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Schechter v 3320 Holding LLC, 2009 NY Slip Op 05684 (App. Div., 1st, 2009)

For a witness to be qualified as an expert, the witness must possess the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable (Matott v Ward, 48 NY2d 455, 459 [1979]). Here, Santiago had no formal training or education, and does not possess any certification or license, with respect to elevator maintenance or repair. He was not, however, precluded from being qualified as an expert for lack of formal training and education; he could have been qualified if through "long observation and actual experience" (Price v New York City Hous. Auth., 92 NY2d 553, 559 [1998] [internal quotation marks and brackets omitted]) he possessed sufficient skill, knowledge and experience in elevator maintenance and repair to support an assumption that his opinion regarding the cause of the interlock's failure was reliable. But Imperial Elevator failed to submit evidence demonstrating that Santiago possessed such skill, knowledge and experience (see Rosen v Tanning Loft, 16 AD3d 480 [2005], citing, among other cases, Hofmann v Toys "R" Us, NY Ltd. Partnership, 272 AD2d 296 [2000]; see also Hellert v Town of Hamburg, 50 AD3d 1481 [2008], lv denied 11 NY3d 702 [2008]). No evidence was submitted demonstrating what on-the-job training Santiago received from the coworker at his prior employer; Santiago's duties as a "maintenance man" — "check[ing] for oil, check[ing] [and cleaning] the [inter]locks," "cleaning the motor room, cleaning the top of the ca[b], [and] cleaning the pit [beneath the elevator]" — do not suggest that he can render a reliable opinion regarding the cause of the failure of the interlock; and Santiago's deposition testimony does not demonstrate that he is familiar with the laws, rules, regulations, and accepted customs and practices in the field of elevator maintenance and repair (cf. Efstathiou v Cuzco, LLC, 51 AD3d 712 [2008]). Because Imperial Elevator failed to demonstrate that Santiago is qualified to render a reliable opinion regarding the cause of the failure of the interlock, it failed to raise a triable issue of fact with respect to the issue of its negligence.

Parol Evidence

Beagle Developers, LLC v Long Is. Beagle Club #II, Inc., 2009 NY Slip Op 05258 (App. Div., 1st, 2009)

Nor were the contract's unambiguous terms modified by defendant's attempt to accommodate plaintiff's requests for documents relating to the merger. The contract clearly states that a waiver of any right at one time does not waive any right at any other time, and further states that the contract may only be modified in writing. Plaintiff cannot negate these unambiguous terms by parol evidence (see Namad v Salomon, 74 NY2d 751, 753 [1989]; Rose v Spa Realty Assoc., 42 NY2d 338, 343 [1977]).

The bold is mine

Experts and Their Reports. And a Engineer's Report that Made its Way into Evidence

Starting last first, here we go.

McPartlan v Basile, 2009 NY Slip Op 05521 (App. Div., 2nd, 2009)

Contrary to the appellants' contention, the engineer's report was admitted into evidence, and properly so, not to prove the truth or accuracy of its contents, but to establish that the plaintiffs had a good faith basis for determining that the report was unacceptable. Furthermore, the record supports the conclusion that the plaintiffs did, in fact, act in good faith, and thus their termination of the contract of sale pursuant to Paragraph 39 of the contract was valid (see Hirsch v Food Resources, Inc., 24 AD3d 293, 296; Tradewinds Fin. Corp. v Refco Sec., 5 AD3d 229, 230-31; Richbell Info. Sers. v Jupiter Partners, 309 AD2d 288, 302). Accordingly, the Supreme Court properly determined that the plaintiffs were entitled to the return of their down payment.

Yun v Barber, 2009 NY Slip Op 05535 (App. Div., 2nd, 2009)

The plaintiffs' remaining submissions did not constitute admissible evidence since they were unsworn (see Grasso v Angerami, 79 NY2d 813; McNeil v New York City Tr. Auth., 60 AD3d 1018; Sapienza v Ruggiero, 57 AD3d 643, 644).

Vickers v Francis, 2009 NY Slip Op 05540 (App. Div., 2nd, 2009)

Initially, the X ray report dated September 22, 2006, the magnetic resonance imaging (hereinafter MRI) reports of Dr. Robert Diamond, the medical records from Alliance Medical Office, the plaintiff's emergency room and hospital records, and the reports of Dr. Nunzio Saulle dated August 31, 2006, and October 19, 2006, were not in admissible form because they were unsworn (see Grasso v Angerami, 79 NY2d 813, 814-815; McNeil v New York City Tr. Auth., 60 AD3d 1018; Sapienza v Ruggiero, 57 AD3d 643, 644; Uribe-Zapata v Capallan, 54 AD3d 936, 937; Choi Ping Wong v Innocent, 54 AD3d 384, 385).

The affirmed medical reports of Dr. Saulle were insufficient to raise a triable issue of fact as to whether the plaintiff sustained a serious injury to her cervical or lumbar spine as a result of the subject accident. Neither the plaintiff nor Dr. Saulle proffered competent objective medical evidence revealing the existence of a significant limitation in either region of the plaintiff's spine that [*2]was contemporaneous with the subject accident (see Leeber v Ward, 55 AD3d 563; Ferraro v Ridge Car Serv., 49 AD3d 498; D'Onofrio v Floton, Inc., 45 AD3d 525). Furthermore, in reaching his conclusion in his affirmed medical reports, Dr. Saulle clearly relied on the unsworn MRI reports of Dr. Diamond (see Magid v Lincoln Servs. Corp., 60 AD3d 1008; Sorto v Morales, 55 AD3d 718; Malave v Basikov, 45 AD3d 539; Verette v Zia, 44 AD3d 747; Furrs v Griffith, 43 AD3d 389; see also Friedman v U-Haul Truck Rental, 216 AD2d 266, 267). Moreover, Dr. Saulle failed to address, in any of his affirmed reports, the fact that the plaintiff injured her neck and back in a subsequent accident in October 2007. His failure to address that accident and the resulting injuries rendered speculative his conclusions that the range of motion limitations he noted in the plaintiff's cervical and lumbar regions after October 2007 were caused by the subject accident (see Donadio v Doukhnych, 55 AD3d 532; Seck v Minigreen Hacking Corp., 53 AD3d 608).

Wartski v C.W. Post Campus of Long Is. Univ., 2009 NY Slip Op 05115 (App. Div., 2nd, 2009)

In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant had actual notice of a recurring dangerous condition such that it could be charged with constructive notice of each specific recurrence of that condition (see Erikson v J.I.B. Realty Corp., 12 AD3d 344, 346; Weisenthal v Pickman, 153 AD2d 849, 851). Here, at most, the evidence submitted by the plaintiff established that the defendant had only a general awareness that the stairs became wet when ice and snow was tracked into the building, which was insufficient to establish constructive notice of the particular condition which caused the plaintiff to fall (see Arrufat v City of New York, 45 AD3d 710; Curtis v Dayton Beach Park No. 1 Corp., 23 AD3d 511; Gonzalez v Jenel Mgt. Corp., 11 AD3d 656; Andujar v Benenson Inv. Co., 299 AD2d at 504; Yearwood v Cushman & Wakefield, Inc., 294 AD2d 568, 569).

The plaintiff's expert affidavit should not have been considered in determining the motion since the expert was not identified by the plaintiff until after the note of issue and certificate of readiness were filed attesting to the completion of discovery, and the plaintiff offered no valid excuse for her delay [*2]in identifying the expert (see CPLR 3101[d][1]; Construction by Singletree, Inc. v Lowe, 55 AD3d 861, 863; Gerry v Commack Union Free Sch. Dist., 52 AD3d 467, 469; Gralnik v Brighton Beach Assocs., LLC, 3 AD3d 518; Dawson v Cafiero, 292 AD2d 488). In any event, even if the plaintiff's expert affidavit could have properly been considered, the result would not have been different.

The bold is mine.