Kevin G. Faley and Andrea M. Alonso
*Originally published in the
New York Law Journal
 April 21, 2015

Expert disclosure timing is a controversial issue in New York practice. There is no universal ruling regarding whether expert disclosure, governed by CPLR §3101(d), must be made before the Note of Issue and Certificate of Readiness have been filed. There is no rule that requires expert disclosure to be exchanged a certain period of time before trial. Both the First and Second Departments have addressed this issue and have held that courts can use their discretion to decide if the expert disclosure was done timely and if it will be precluded at trial.

Background

Generally, when a party files a Note of Issue and Certificate of Readiness, the party affirms that all the discovery proceedings have been completed. However, the wording of CPLR §3101(d) does not call for disclosure of experts to be done before a note of issue has been filed.

CPLR §3101(d) provides that each party must identify the experts to be called at trial and must disclose in reasonable detail the subject matter on which the expert is to testify.1 The statute also provides that when a party shows good cause for retaining an expert an insufficient time before the trial, that party may be allowed to introduce the expert's testimony.

The Second Department has held that 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."2

History: Key Cases

The Second Department ruled in the 2008 case of Construction by Singletree v. Lowe that a trial court can preclude an expert's affidavit when it is offered in opposition to a summary judgment motion where the expert was not disclosed prior to the filing of the note of issue.3

In 2012, Rivers v. Birnbaum overruled the Singletree ruling with the Second Department to state that even when "the disclosure of an expert pursuant to CPLR 3101(d)(1)(i) takes place after the filing of the Note of Issue and Certificate of Readiness, it does not, by itself, render the disclosure untimely."4

The plaintiffs in Rivers sought discovery under CPLR §3010(d)(1)(i) in August 2008 requesting that the defendants disclose information regarding their expected trial witnesses.5 Before the defendants responded to the plaintiffs' request for expert disclosure, in February 2010 the plaintiffs filed their Note of Issue and Certificate of Readiness. Thereafter, the defendants filed their summary judgment motion with affirmations from physicians-experts whose names were not disclosed prior to the filing of the note of issue.

The plaintiffs contended it was an error to consider any of the defendants' expert affirmations that had been filed with the summary judgment motion since the Note of Issue and Certificate of Readiness were filed prior to the summary judgment motion. The appellate court disagreed as there was no deadline imposed by CPLR §3101(d)(1)(i) to bar expert testimony since "the statute does not require expert disclosure at any particular time and does not mandate preclusion for noncompliance."6

Rivers reinstated the case-by-case examination of expert disclosure to determine whether the disclosure was timely and appropriate. The fact that the disclosure of an expert takes place after the note of issue has been filed does not render the disclosure untimely; instead it is one factor in determining whether the disclosure is untimely. The court found that based upon the language of the statute, "there is no basis for concluding that a court must reject a party's submission of an expert's affidavit or affirmation in support of, or in opposition to, a timely motion for summary judgment solely because the expert was not disclosed pursuant to CPLR 3101 (d)(1)(i) prior to the filing of a note of issue."7

Courts must now determine, among other things, whether the need for disclosure was apparent from the nature of the case in deciding whether or not the parties' experts should be precluded as untimely when expert disclosure for a summary judgment motion was made after the note of issue has been filed.

First Department

The First Department has imposed the burden on the disclosing party to prove that there is (1) no showing of a willful failure to disclose the testimony or (2) that any resulting prejudice to the opposing party does not justify preclusion in both summary judgment motions and in testimony at trial.8

In Downes v. Am. Monument Co., the First Department upheld the trial court's decision to consider the affidavit of the plaintiff's expert witness.9 The court held that there was no willfulness or prejudice by the plaintiff's failure to disclose in a timely manner and the expert affidavit was allowed in opposition to summary judgment.

In McDermott v. Alvey, the First Department found that the plaintiff's conduct was not intentional or willful in failing to disclose identities of experts at trial.10 In Downes, the court allowed the testimony without assessing any sanctions, but in McDermott, the court decided that fining the plaintiff's counsel $1,500 for its lack of diligence was more appropriate than precluding the expert testimony.

The plaintiff in McDermott waited until the day before trial before responding to defendant's demand for expert disclosure which was served on plaintiff three years prior. The plaintiff had previously disclosed the identities of all medical and engineering experts in a timely manner. Yet, after retaining the services of the economist expert one month prior to the scheduled trial date plaintiff did not disclose the expert's identity to the opposing party. Plaintiff was unsure if the economist expert would be able to testify on the date of the trial so he waited until three days before trial to disclose. The court stated that with similar delays they have precluded the expert testimony, but because here there was no proof of intentional or willful failure to disclose the testimony was admitted into trial.

Unlike Downes and McDermott, in Garcia v. New York, the First Department held that the trial court erred in not precluding plaintiffs' expert and in not granting the defendants' motion for summary judgment.11 The defendants served their demand for expert disclosure in May 2004 and the plaintiff failed to respond. In January 2010, the plaintiff filed the Note of Issue and Certificate of Readiness, but plaintiff did not submit his expert's affidavit until November 2010 in opposition to the defendants' motion for summary judgment. The court held that "the expert's affidavit should not have been considered in light of plaintiff's failure to identify the expert during pretrial discovery as requested by defendants' demand."12Garcia further emphasized the court's discretion to decide whether or not an expert affidavit should be precluded by looking at the facts on a particular case.

Second Department

The Second Department has held that even if the disclosure of an expert pursuant to CPLR §3101(d) takes place after the filing of the note of issue, the disclosure is not automatically untimely. The court can look at all the relevant circumstances in the particular case and use its discretion to determine (1) whether or not the expert disclosure was done untimely and (2) if the delayed disclosure was done in good cause with a valid excuse.13

In Banister v. Marquis, the Second Department determined that the trial court properly exercised its discretion in precluding the plaintiff's expert radiologist to testify.14 The court found that the plaintiff's "proffered explanation for failing to identify this witness until after the trial began was not based on good cause."15

Contrasting Banister, in Abreu v. Metropolitan Transp. Auth., the Second Department held the Supreme Court properly used its judgment when considering the expert's affirmation and affirmed the expert report, even though the expert was disclosed after the note of issue was filed.16 Defendants Westrans, Inc. had moved for summary judgment to dismiss the complaint against the plaintiffs due to a lack of serious injuries under Insurance Law §5102(d). In the plaintiffs' opposition, they raised triable issues of fact as to plaintiff Abreu's right knee and submitted the affirmed report of Dr. Jerry Lubliner. At the time that the report was submitted, the note of issue had already been filed.

The court found that there was "no evidence that the plaintiffs' delay in retaining the expert or in serving their expert information was intentional or willful and prejudicial to the Westrans defendants."17 The plaintiff submitted the expert report in opposition to the defendants' motion for summary judgment and the defendants had an opportunity to refute the expert's conclusions in their reply. Therefore, there was no evidence that there was prejudice to the defendants from the plaintiffs' late expert disclosure.

Similarly, in Romano v. Persky, the Second Department held that the Supreme Court providently exercised their discretion in considering the expert testimony, as the defendants' failure to disclose expert witness information was not intentional or willful and further did not prejudice the plaintiffs.18

Trial Court

At the trial court level, the Kings County Supreme Court held in Herrera v. Lever that allowing the testimony of an expert witness would be inherently prejudicial since the Note of Issue and Certificate of Readiness were filed in October 2010 and the disclosure of the expert witness was not until February 2012.19 In cases similar to Herrera, where there is a large gap between the date of the filing of the note of issue and the expert disclosure, the courts usually find that there is inherent prejudice and the expert should be barred from testifying.20

The plaintiff's attorney proffered as an excuse that he was not assigned to the case for trial until shortly before the motion was made to introduce the expert witness. The court believed that if the disclosure requirement is to have any meaning and the Certificate of Readiness is meant as more than a technicality, expert disclosure after the Note of Issue and Certificate of Readiness have been filed must be supported with a better excuse than was offered in this case.

Although Kings County Supreme Court seems to have established a bright-line rule where expert disclosure after the note of issue has been untimely exchanged, recent Queens County Supreme Court and Suffolk County Supreme Court decisions seem to state otherwise. The Queens County Supreme Court reaffirmed its power to use its "discretion either to consider such an affidavit or reject it depending upon the particular circumstances of the case." In Perciavalle v. Tapalaga, the court held that there was no basis to reject the expert affidavit since there was no request for expert disclosure.21 Therefore, the expert disclosure was to be considered even though the disclosure was done after the filing of the Note of Issue and Certificate of Readiness.

 In Suffolk County, the Supreme Court held, "the failure of a party to disclose its experts pursuant to CPLR 3101(d)(i) prior to the filing of a Note of Issue does not divest a court of the discretion to consider an affirmation or affidavit submitted by that party's experts as CPLR 3101(d)(i) imposes no deadline or bar to expert testimony for noncompliance."22

Similar to Queens County, Suffolk County leaves the decision of whether expert testimony has been timely disclosed up to the trial judge.

Current Trends

The current trend for both the First Department and Second Department for expert disclosure after the Note of Issue and Certificate of Readiness have been filed is to allow the court to decide on a case-by-case basis, although Kings County has established more of a bright-line rule stating where there is a large discrepancy between the dates of the note of issue and expert disclosure the disclosure should be barred. The courts tend to look at the individual facts in each case to see if there is a reason why there was a failure to disclose and if the lack of disclosure was done in good faith. When the disclosure is done in good faith, it is not unreasonable for a court to allow the expert witness to testify even if this is after the note of issue has been filed.

It does not appear that either the First or Second Departments are inclined to draw a "bright-line" rule on expert disclosure after the Note of Issue and Certificate of Readiness have been filed. The courts are divided and this seems to suggest that courts may continue to rule on this issue on a case-by-case basis until the Court of Appeals decides to wade into the fray.

 

Endnotes:

1. NY CLS CPLR §3101(d)(1)(i).

2. Rivers v. Birnbaum, 102 AD3d 26, 36-37, 953 NYS2d 232 (2d Dept. 2012).

3. Construction by Singletree v. Lowe, 55 AD3d 861 (2d Dept. 2008).

4. Rivers v. Birnbaum, 102 AD3d at 41.

5. Rivers v. Birnbaum, 102 AD3d at 33.

6. Rivers v. Birnbaum, 102 AD3d at 33-34.

7. Rivers v. Birnbaum, 102 AD3d at 39.

8. Rojas v. Palese, 94 AD3d 557 (1st Dept. 2012).

9. Downes v. Am. Monument Co., 724 NYS2d 610 (1st Dept. 2001).

10. McDermott v. Alvey, 603 NYS2d 162 (1st Dept. 1993).

11. Garcia v. New York, 2012 N.Y. Slip Op. 06112 (1st Dept. Sept. 11, 2012).

12. Garcia v. New York, 2012 N.Y. Slip Op. 06112 at 858.

13. Kopeloff v. Arctic Cat, 84 AD3d 890, 891, 923 NYS2d 168 (2d Dept. 2011).

14. Banister v. Marquis, 87 AD3d 1046 (2d Dept. 2011).

15. Banister v. Marquis, 87 AD3d at 1046.

16. Abreu v. Metropolitan Transp. Auth., 117 AD3d 972 (2d Dept. 2014).

17. Abreu v. Metropolitan Transp. Auth., 117 AD3d at 974.

18. Romano v. Persky, 117 AD3d 814 (2d Dept. 2014).

19. Herrera v. Lever, 34 Misc.3d 1239(A) (Sup. Ct. Kings Co. 2012).

20. See Stolarski v. DeSimone, 83 A.D.3d 1042, 1044, 922 NYS2d 151 (2d Dept. 2011).

21. Perciavalle v. Tapalaga, 2013 N.Y. Misc. LEXIS 3415 at *4 (2013).

22. Murray v. Charap, 2013 N.Y. Misc. LEXIS 3740 at 26 (2013).