litigation whether at the instance of a plaintiff or a defendant, may testify at trial without there
having been expert disclosure pursuant to CPLR 3101 (d), assuming that the plaintiff has
complied with the rules on the exchange of medical reports found in Uniform Civil Rules for the
Supreme Court and the County Court §202.17 (22 NYCRR §202.17.) (See Jing Xue Jiang v Dollar Rent a Car,
Inc., 91 AD3d 603, 604 [2d Dept 2012]; Swezey v Montague Rehab. & Pain Mgt., P.C., 84 AD3d 779, 780
[2d Dept 2011]; Logan v Roman, 58
AD3d 810, 810 [2d Dept 2009].) The rationale appears to be that notice of the treating
physician's likely testimony is given by the physician's report(s) exchanged pursuant to the
Uniform Rules. (See Breen v Laric
Entm't Corp., 2 AD3d 298, 299 [1st Dept 2000]; Overeem v Meuhoff, 254
AD2d 398, 400 [2d Dept 1998].)
Uniform Rule §202.17 (h) provides, "Unless an order to the contrary is made or unless
the judge presiding at the trial in the interests of justice and upon a showing of good cause shall
hold otherwise, a party seeking to recover damages shall be precluded at the trial from offering in
evidence . . . all . . . records . . . not made available pursuant to this rule, . . . nor will the court
hear the testimony of any treating or examining medical providers whose medical reports have
not been served as provided by this rule." (22 NYCRR §202.17 [h].)
[*9]
The preclusion of evidence required by the quoted
provision is predicated upon a party's failure to exchange a report only where exchange is
required by some other provision of the Rule. (See Diamanstein v Friedman, 199 AD2d
458, 459 [2d Dept 1993]; Peterson v West, 134 AD2d 668 [3d Dept 1987]; see also Padovani v Miller, 8 AD3d