NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A6265
SPONSOR: Kaminsky (MS) TITLE OF BILL: An act to amend the civil practice law and rules, in
relation to the use of expert affidavits in summary judgment motions
This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Advisory
Committee on Civil Practice.
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 continu-
ing, 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)(I). 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 commence-
ment of trial ..." Id.
In Construction by Singletree,Inc.v.Lowe, 55 A.D.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.D.3d 26 (2d Dep't
2012), the Second Department appeared to back away from its prior hold-
ing 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 (1st Dep't
2012), without citing Singletree or its progeny (Garcia was decided
before Rivers), the Appellate Division held that "(t)he expert's affida-
vit should not have been considered in light of plaintiff's 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 (1st 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 1he 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 (lst 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 auto-
matically 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 profer-
ring 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 infor-
mation 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 contra-
venes the provisions of CPLR 3101(d)(1)(i) and, in effect, precludes
otherwise admissible expert testimony, and (b) contravenes the long-
standing 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 proceed-
ing.
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 imme-
diately.
LEGISLATIVE HISTORY:
None. New proposal.
