(concurring). We respectfully concur. To begin, we fully agree with Supreme Court and the majority that the failure of plaintiffs’ counsel to comply with CPLR 3101 (d) (1) (i) was not willful and that plaintiffs should not be precluded from having Anthony Cicoria render opinion testimony. We take a different approach, however, as to the appropriate remedy. There is no dispute that the video testimony of Cicoria was taken for purposes of trial — a format confirmed in advance by correspondence between counsel (see 22 NYCRR 202.15 [a]). Prior to initiating the questioning, plaintiffs’ counsel reiterated that “this deposition is being taken for purposes of the preservation of testimony that will be utilized at the trial in this proceeding.” The testimony of Cicoria proceeded, without restriction as to any objections (see CPLR 3113 [b], [c]; compare 22 NYCRR part 221), until the parties reached an impasse as to whether Cicoria was entitled to render opinion testimony. He did so, over defendant’s objection. In effect, Cicoria has already fully testified on direct as to the treatment rendered to plaintiff Michael C. Schmitt for a left wrist fracture both before and after surgery, his diagnosis and prognosis as to Schmitt’s injury, causation and permanency. The only claimed prejudice here is to defendant, which reasonably contends that it was deprived of an opportunity to fully prepare to cross-examine Cicoria concerning any opinion testimony.
In our view, plaintiffs should be bound by the format that they selected and not be accorded a second opportunity to call Cicoria as a witness at trial. That said, defendant’s objections to Cicoria’s opinion testimony based on CPLR 3101 (d) (1) (i) should be denied and plaintiffs allowed to present the direct video testimony of Cicoria. Any prejudice to defendant may be resolved by allowing defendant an opportunity to either cross-examine Cicoria anew or continue the cross-examination completed to date. To avoid any confusion at trial, any further testimony of Cicoria should be completed by video examination to be held at the same location, or at such other location as the parties may agree, at plaintiffs’ expense. With this format, and *1258Cicoria having completed his direct testimony, there is no need for an expert witness disclosure statement outlining the subject matter and factual basis for Cicoria’s testimony.