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JEFFERSON v. TEMCO SERVICES INDUSTRIES, INC.

272 A.D.2d 196 (2000)

708 N.Y.S.2d 21

ROBERT JEFFERSON, Appellant, v. TEMCO SERVICES INDUSTRIES, INC., et al., Respondents. MONTROSE REALTY CO., Third-Party Plaintiff-Respondent, v. CHEMICAL BANK, Third-Party Defendant-Respondent.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided May 18, 2000.

Since there was no proof that plaintiff's failure to comply with a disclosure request pursuant to CPLR 3101 (d) (1) (i) was willful or prejudicial, that failure should not have been utilized to preclude the affidavit of plaintiff's expert (see, McDermott v Alvey, Inc., 198 A.D.2d 95; Busse v Clark Equip. Co., 182 A.D.2d 525). Nevertheless, even when that affidavit is taken into

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