Relates to the use of expert affidavits in summary judgment motions

This measure would amend CPLR 3212(b) to effect a very narrow, but much needed, change in procedural law concerning the admissibility of expert affidavits in civil summary judgment motions. It would, in effect, legislatively overrule a line of decisions, starting with Construction by Singletree, Inc v. Lowe, 55 A.D.3d 861 (2d Dep't 2008), and continuing, inter alia, with Garcia v New York, 98 A.D.3d 857 (1St Dep't 2012), Rivers v. Birnbaum, 102 A.D.3d 26 (2d Dep't 2012), and, most recently, DeSimone v New York, 2014 NY Slip Op 06667 (1St Dep't 2014). These First and Second Department cases have permitted trial judges, in an exercise of discretion, to decline to consider expert affidavits submitted in support of, or in opposition to, summary judgment motions where the proponent of the affidavit did not serve a CPLR 3101(d)(1)(i) exchange prior to the filing of the note of issue. This measure would amend CPLR 3212(b) to expressly allow such an expert affidavit whether or not an expert disclosure was made prior to the submission of the affidavit.

Current Law

One statute in New York addresses the issue of timing in the use of expert affidavits. See CPLR 3101(d)(1)(1) This statute makes no mention of the filing of the note of issue, and does not link or limit the exchange of experts to a period of time at or prior to the filing of the note of issue, or at or prior to the completion of fact discovery, or anything else. The only reference point stated for the exchange of experts refers to "an insufficient period of time before the commencement of trial ..." Id.

In Construction by Singletree, Inc v. Lowe, 55 AD 3d 861 (2d Dep't 2008), the Second Department affirmed as a proper exercise of discretion a trial court's decision in declining to consider affidavits proffered by defendant's purported experts, since defendant failed to identify experts in pretrial disclosure and served affidavits after the filing note of issue and certificate of readiness attesting to completion of discovery. Thereafter, in Rivers v. Birnbaum, 102 A Dad 26 (2d Dep't 2012), the Second Department appeared to back away from its prior holding in Singletree, holding that while post-note of issue expert exchange is but one fact for the court to consider, it nonetheless remains a factor.

In the First Department, in Garcia v. New York, 98 A D 3d 857 (1" Dep't 2012), without citing Singletree or its progeny (Garcia was decided before Rivers), the Appellate Division held that "Nile expert's affidavit should not have been considered in light of plaintiffs failure to identify the expert during pretrial discovery as required by defendants' demand (citations omitted)."

Garcia was cited as the sole authority in a recent 2014 First Department decision, DeSimone v. New York, 2014 NY Slip Op 06667 (1" Dep't 2014), where that court held:

The court providently exercised its discretion in denying plaintiffs cross motion to submit a disclosure of his expert professional engineer, since it was first submitted in opposition to defendants' motions for summary judgment dismissing the complaint, and subsequent to the filing of the note of issue and certificate of readiness (citation omitted).

Both Departments have issued decisions with contrary holdings. See, e.g., Ramsen A.. V New York City Hous. Auth , 112 A D 3d 439 (1" Dep't 2013):

CPLR 3101(d)(1)(i) does not require a party to retain an expert at any particular time (citation omitted). "(E)ven where one party requests trial expert disclosure during discovery pursuant to CPLR 3101(d)(1)(i), a recipient party who does not respond to the request until after the filing of the note of issue and certificate of readiness will not automatically be subject to preclusion of its expert's trial testimony" (citation omitted).

Buchanan v. Mack Trucks, Inc. 2014 NY Slip Op 318 (2d Dep't 2014) (citing Rivers):

(A) party's failure to disclose its experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness does not divest a court of the discretion to consider an affirmation or affidavit submitted by that party's experts in the context of a timely motion for summary judgment (citations omitted).

Rowan v Cross Country Ski & Skate, 42 A D.3d 563, 840 N.Y.S.2d 414 (2d Dep't 2007):

Contrary to the plaintiffs contention, the court properly permitted the defendants' expert to testify. "CPLR 3101 (d)(1)(i) does not require a party to respond to a demand for expert witness information at any specific time nor does it mandate that a party be precluded from proferring expert testimony merely because of noncompliance with the statute unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party" (citations omitted). Here, the record does not support a conclusion that the defendants' delay in retaining their expert or in serving their expert information was intentional or willful. Furthermore, disclosure of the expert information was not made on the eve of trial since the plaintiff had two weeks within which to review the material prior to the date when the trial was scheduled to begin. Moreover, any potential prejudice to the plaintiffs could have been eliminated by an adjournment of the trial (citation omitted).

Our Advisory Committee believes that the Singletree/Rivers holdings (a) impose a temporal requirement for noticing expert witnesses that contravenes the provisions of CPLR 3101(d)(1)(i) and, in effect, precludes otherwise admissible expert testimony, and (b) contravenes the longstanding application of CPLR 3101(d)(1)(i) to the noticing of

experts for trial in relation to the date set for trial of an action or proceeding.

Compounding the difficulties practitioners face in navigating the conflicting holdings cited above are the multitude of different Judicial District, County, and individual judges' rules addressing the timing of expert disclosure, many of which may be at odds with CPLR 3101(d)(1)(i) or which do not require disclosures of expert information before the filing of a notice. Another factor complicating the timing of expert disclosure is the continuing practice in certain counties to permit routine post-note of issue disclosure.

Accordingly, this measure would not alter the circumstances in which expert testimony may be offered. Nor would it alter the rules concerning the admissibility of the reports or data on which the testimony may be premised. It would simply provide that a party's right to submit an expert affidavit in support of, or in opposition to a summary judgment motion would not be affected by whether or not the party made disclosure of the expert before submitting the affidavit is designed to aid in establishing uniformity in practice state-wide, reducing confusion among members of the bench and bar as to the timing of expert disclosure, and making certain that where expert testimony is required or desired in support or opposition to a summary motion, the functional equivalent of a trial, that parties have the same latitude to utilize expert testimony as they do at trial.

This measure, which would have no fiscal impact, would take effect immediately.

Legislative History:

None. New proposal.