In New York State, expert witness disclosure is governed by CPLR section 3101(d). The question of when expert witness disclosure must be provided to a party’s adversary would require the simple answer that the statute does not mandate response to a demand for expert witness disclosure at any specific time. (It should be noted, however, that time requirements may be imposed by a Preliminary Conference Order or Court Rules) Notwithstanding the lack of any time requirement in the statute, the courts—and the Second Department court, in particular-- has imposed rules where the expert witness was not disclosed prior to the filing of the note of issue.
In the Second Department, there is a line of cases that bars consideration of an expert’s affidavit submitted in opposition to a post-note of issue motion for summary judgment where the expert was not disclosed before the note of issue was filed.
The leading case on this subject is Construction by Singletree, Inc. v. Lowe, 55 AD3d 861 (2nd Dept. 2008). In Singletree, after filing of the note of issue, the plaintiff moved for summary judgment. The defendant opposed the motion with affidavits from experts whose identity had not previously been disclosed. The court held that these affidavits from undisclosed experts could not be considered in opposition to the motion.
In a well reasoned dissenting opinion, Justice Carni noted that since CPLR 3101(d) applies to persons “whom the party expects to call as experts or consultants at trial” and it does not require disclosure of experts that are retained for purposes other than providing trial testimony, it would be wrong to impose a timing requirement for the exchange of expert affidavits submitted in support of summary judgment motions, as the statute imposes no such limits in the context of trial disclosures.
The Second Department continues to utilize Singletree and its progeny: Kopeloff v. Arctic Cat, Inc., 84 AD3d 890 (2nd Dept. 2011); Ehrenberg v. Starbucks Coffee Co., 82 AD3d 829 (2nd Dept. 2011); Pellechia v. Partner Aviation Enterprises, Inc., 80 AD3d 740 (2nd Dept 2011); Gerardi v. Verizon, 66 AD3d 960 (2009); Wartski v. C.W. Post, 63 AD3d 916 (2nd Dept. 2009); Stolarski v. DeSimone, 83 AD3d 1042 (2d Dept. 2011; Yax v. Development Team, Inc., 67 AD3d 1003 (2d Dept. 2009).
The First Department has also cited Singletree with approval: Harrington v. City of New York, 79 AD3d 545 (1st Dept. 2010) and Mauro v. Rosedale Enterprises, 60 AD3d 401 (1st Dept. 2009).
Interestingly, there have been a few Second Department cases where the court approved of the trial court permitting consideration of an expert’s affidavit in a summary judgment motion where there was a “factual dispute” as to whether the plaintiff had complied with the disclosure requirements of CPLR 3101(d). Howard v Kennedy, 60 AD3d 905 (2nd Dept. 2009). See also, Browne v. Smith, 65 AD3d 996 (2nd Dept. 2009) where there was no evidence that the failure to disclose was intentional or willful and the defendant did not show prejudice. Rivers v Birnbaum, 102 AD3d 26 (2nd Dept. 2012) and LeMaire v. Kuncham, 102 AD3d 659 (2nd Dept. 2013) are two cases cited extensively in support of permitting a non-disclosed expert’s affidavit to be considered.
Advice to the Bar: If you plan to move for summary judgment or oppose a motion for summary judgment with an expert affidavit, file an expert disclosure before the filing of the note of issue.