In recent years, a question has been raised—primarily in the Second Department—as to whether expert affidavits submitted on summary judgment motions should be rejected if an expert disclosure under CPLR 3101(d) was not served prior to the filing of the note of issue. Several appellate decisions found that expert affidavits were properly disregarded under these circumstances, with some going further and finding it an abuse of discretion to consider them.

Although the issue initially arose in general negligence cases, litigants in medical malpractice actions have argued that expert affidavits submitted in support of, or opposition to, summary judgment could not be considered if there was no disclosure before the note of issue. Since the Second Department does not require pre-note of issue service of 3101(d) disclosures for experts to testify at trial, these decisions created something of an anomaly—experts who would be permitted to testify at trial could not submit affidavits on summary judgment motions. It also created a great deal of uncertainty for litigants in terms of the time requirements for serving expert disclosures.

In its recent opinion in Rivers v. Birnbaum, —A.D.3d—, 2012 WL 4901445 (2d Dept. 2012), the Second Department has resolved the anomaly and abated the uncertainty. This month’s column traces the development of the rule rejecting expert affidavits based on a failure to serve pre-note expert disclosures, and analyzes the opinion in Rivers and its likely impact on litigation.

Genesis of Rule

The earliest appellate decision uncovered by our research addressing the interplay between expert affidavits on summary judgment and the timing of CPLR 3101(d) responses was by the Fourth Department in Kozlowski v. Alcan Aluminum, 209 A.D.2d 930 (4th Dept. 1994), which involved claims under New York’s Labor Law. The plaintiff moved for summary judgment, and argued that the affidavit submitted in opposition should not be considered because the defendant failed to identify the expert in a reasonable time under CPLR 3101(d). The Appellate Division rejected the argument, noting that the remedy for failure to comply with that section is to move for “whatever order may be just.” The First Department has been faced with the issue on several occasions, and each time has either rejected preclusion or found no need to address it.1

The Second Department is where the issue has been most prominent. The earliest Second Department decision addressing this issue is Mankowski v. Two Park Co., 225 A.D.2d 673 (2d Dept. 1996), which stemmed from personal injuries sustained in a slip and fall. The court affirmed an order dismissing the complaint, finding that the motion court providently exercised its discretion in precluding the use of an expert and an expert affidavit in opposition to summary judgment due to the plaintiffs’ failure to timely respond to disclosure demands.

A review of the appellate briefs reveals that the defendant’s motion argued that there was no notice of a defective condition, that the plaintiff’s opposition included an affidavit from an engineer to establish constructive notice, and that the defendant argued that this violated a preliminary conference order that directed the parties to exchange names of all witnesses. The defendant relied on cases holding that untimely expert disclosure results in preclusion at trial, decisions noting that summary judgment is the procedural equivalent of trial, and one case in which affidavits of notice witnesses were precluded on summary judgment because their identities were not disclosed in accordance with discovery orders.

Mankowski was subsequently cited in Ortega v. New York City Transit Auth., 262 A.D.2d 470 (2d Dept. 1999), which held that the affidavits of plaintiff’s notice and expert witnesses submitted in opposition to summary judgment were improperly considered by the motion court. The Second Department noted that the plaintiffs had previously served a discovery response indicating that they had no such witnesses, failed to disclose them prior to filing the note of issue, and disclosed them for the first time in their opposition papers. In Dawson v. Cafiero, 292 A.D.2d 488 (2d Dept. 2002), the Second Department relied on its prior decisions in Mankowski and Ortega in holding that the motion court providently exercised its discretion in rejecting affidavits of two experts submitted in opposition to summary judgment because they had not been disclosed before the note of issue.

These decisions appear to represent the genesis of the rule that expert affidavits may not be submitted on summary judgment motions if there was no expert disclosure before the note of issue. However, the rule has by no means been immutable. For instance, in Blade v. Town of North Hempstead, 277 A.D.2d 268 (2d Dept. 2000), the Second Department rejected the assertion that an expert affidavit should not have been considered in opposition to summary judgment, noting that CPLR 3101(d) does not require expert disclosure at any specific time. See also Browne v. Smith, 65 A.D.3d 996 (2d Dept. 2009). In Simpson v. Tenore and Guglielmo, 287 A.D.2d 613 (2d Dept. 2001), the court found that an expert affidavit was properly considered in opposition to summary judgment, since there was no evidence of either intentional failure to disclose or prejudice to the moving defendants.

Nevertheless, many decisions have found proper exercises of discretion in declining to consider expert affidavits on summary judgment based upon failures to disclose the experts before the note of issue,2 while many others have found it an abuse of discretion to consider such affidavits absent a valid excuse for the delay in disclosing.3 These decisions appear inconsistent with the fact that CPLR 3101(d) does not require expert disclosure at any specific time, as the court acknowledged in Blade.

It is one thing to rule that an expert affidavit should be precluded on summary judgment where there was violation of a court order specifying the time for expert disclosure, but it is altogether different to impose a rule precluding such an affidavit based on a failure to disclose an expert when there has been no violation of a specified time requirement. In the former circumstance the litigants are on notice and violate a court-ordered deadline at their own risk, while in the latter there is no means of knowing whether expert affidavits would be precluded for failing to serve a disclosure before the note of issue. This is particularly so since the Second Department has consistently recognized that CPLR 3101(d) imposes no specific time requirement for disclosure of an expert for the purposes of testifying at trial.4

Malpractice Cases

The absence of expert disclosure has also been raised as grounds to preclude consideration of expert affidavits for and against summary judgment motions in malpractice cases in the Second Department. In Wager v. Hainline, 29 A.D.3d 569 (2d Dept. 2006), the court found that the lower court should not have considered an expert affidavit submitted in opposition to summary judgment because it violated the express terms of an outstanding discovery order. However, the argument has been rejected, for varying reasons, in each of the other malpractice actions in which it was raised on appeal. See Hayden v. Gordon, 91 A.D.3d 819 (2d Dept. 2012); Ozugowski v. City of New York, 90 A.D.3d 875 (2d Dept. 2011); Howard v. Kennedy, 60 A.D.3d 905 (2d Dept. 2009); Hernandez-Vega v. Zwanger-Pesiri Radiology, 39 A.D.3d 710 (2d Dept. 2007).

This brings us to Rivers v. Birnbaum, a medical malpractice action in which the plaintiff claimed that the defendants were negligent in failing to properly diagnose and treat conditions that led to the development of cancer. The preliminary conference order stated only that expert disclosures would be in accordance with CPLR 3101, and specifically exempted them from other discovery deadlines. The plaintiffs served their expert disclosures, then filed the note of issue before the defendants served theirs.

The defendants subsequently moved for summary judgment on various grounds, relying on affirmations from non-party experts. The plaintiffs opposed the motion with affirmations from their own experts, and cross-moved for summary judgment against one of the defendants. They also argued that the defense expert affirmations should be precluded based upon their failure to serve expert disclosures prior to the filing of the note of issue. The motion court rejected that argument. It then granted summary judgment to all defendants but one, and denied plaintiff’s cross-motion (which was brought against one of the defendants the court dismissed). The plaintiff appealed.

The Appellate Division ultimately granted summary judgment to all defendants and dismissed the action in its entirety. However, the primary import of the opinion, and indeed, its main focus, was on the procedural issue of whether expert affidavits should be disregarded where there was no expert disclosure before the note of issue.

At the outset of the opinion, the court expressly stated that the case presented “an opportunity to clarify the rule” applicable in such circumstances. It recognized that “certain decisions of this Court may have been interpreted as standing for the proposition that 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, by itself, requires preclusion of an expert’s affirmation or affidavit submitted in support of a motion for summary judgment.”

In clarifying the rule, the court held that service of expert disclosure after the note of issue “does not, by itself, render the disclosure untimely.” Instead, it is “but one factor in determining whether disclosure is untimely.” The court further held that even if the disclosure is determined to be untimely under the relevant circumstances, “it still may, in its discretion, consider an affidavit or affirmation from that expert submitted in the context of a motion for summary judgment, or it may impose an appropriate sanction.”

In reaching this conclusion, the court noted that CPLR 3101(d)(1)(i) does “not specify when a party must disclose its expected trial experts upon receiving a demand,” and does not mandate that noncompliance result in preclusion of expert testimony. It found that the Legislature “purposefully omitted a deadline in CPLR 3101(d)(1)(i),” noting that the very next subdivision, 3101(d)(1)(ii), expressly imposes a 20-day limit within which a party must accept or reject an offer to have expert depositions.

The court further observed that “the statute itself specifically vests a trial court with the discretion to allow the testimony of an expert who was disclosed near the commencement of trial.” Thus, a party who does not respond to a demand for expert information before the note of issue “will not automatically be subject to preclusion of its expert’s trial testimony.” Therefore, the court concluded, the failure to provide such disclosure before the note of issue “will not divest a trial court of the discretion to consider an affirmation or affidavit submitted by that party’s expert in the context of a timely motion for summary judgment.”

The court further found that the language of the statute anticipates that expert disclosure may occur shortly before trial, even if the expert may have been retained much earlier.

Further, the language of CPLR 3101(d)(1)(i) anticipates that the disclosure of expert trial witnesses might not occur until near the commencement of trial. As such, the statute implicitly recognizes that parties often delay the retaining of an expert until it is apparent that settlement is unlikely and a trial will be necessary. Significantly, even if a party has retained an expert during discovery and is the recipient of a CPLR 3101(d)(1)(i) request for trial expert disclosure, it has no affirmative obligation to disclose that expert during discovery unless it “expects to call [that expert] as an expert witness at trial” (CPLR 3101[d][1][i]; see Vigilant Ins. v. Barnes, 199 A.D.2d 257).

The court thus concluded that “[b]ased on the plain language and intent of the statute, which do not automatically preclude experts disclosed near the commencement of trial from testifying at trial, 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 and certificate of readiness, or prior to the making of the motion.”

The Appellate Division further noted that in so clarifying the rule, it was taking into consideration that summary judgment is the procedural equivalent of trial, and that it must be denied if there is any doubt as to the existence of a material issue of fact. It then observed that preclusion on the basis of a failure to disclose before the note of issue “does not necessarily advance the court’s role of determining the existence of a triable issue of fact,” and “is not consistent with the purpose and procedural posture of a motion for summary judgment.”

Moving Ahead

The court’s opinion has brought much needed clarification to an important issue. For the past several years, litigants have faced a circumstance in which they need not provide expert disclosure until trial is imminent, but might find that they are precluded from submitting expert affidavits in opposition to summary judgment motions. There has also been an inconsistency in that experts who would be permitted to testify at trial might be precluded from submitting affidavits on summary judgment motions. These problems should no longer exist.

While the court did not issue a blanket rule that expert affidavits must always be considered on summary judgment, irrespective of expert disclosure, the discretionary standard should usually have the same result. The standard is now the same for summary judgment motions as it is for trial. Under that standard, preclusion is warranted only if there is both a willful or intentional failure to disclose and prejudice to the opposing party.5 The prejudice element alone would be very difficult to satisfy in a medical malpractice action because, as noted above, everyone anticipates expert affidavits to be submitted in summary judgment motions in such actions. A defendant moving for summary judgment is not required to refute the statements made in an expert disclosure but the allegations in the bills of particulars.6 Expert disclosures are substantively irrelevant to summary judgment motions in medical malpractice actions.

The wilful or intentional requirement is also difficult to satisfy in malpractice cases. Litigants often do not decide which expert they will use until trial approaches. It is therefore hard to envision a situation in which deliberate concealment would apply to an expert disclosure not being served before the note of issue is filed. Also, many courts issue orders prescribing when expert disclosures should be provided, and if such an order has not been violated, it is difficult to conceive that there could be a finding of wilful non-disclosure.

In sum, the Second Department has now adopted a standard for resolving this issue which is consistent with the manner in which it applies to expert testimony at trial. Litigants should now be clear on how to proceed in terms of the timing of expert disclosure, without concerns of being arbitrarily precluded from submitting expert affidavits on summary judgment motions.

Thomas A. Moore is senior partner and Matthew Gaier is a partner of Kramer, Dillof, Livingston & Moore.

Endnotes:

1. Bygrave v. New York City Housing Auth., 65 A.D.3d 842 (1st Dept. 2009); Mauro v. Rosedale Enterprises, 60 A.D.3d 401 (1st Dept. 2009); Downes v. Am. Monument, 283 A.D.2d 256 (1st Dept. 2001); Jefferson v. Temco Services Industries, 272 A.D.2d 196 (1st Dept. 2000); Pidgeon v. Metro-North Commuter R.R., 248 A.D.2d 318 (1st Dept. 1998).

2. See, e.g., Mohamed v. New York City Transit Auth., 80 A.D.3d 677 (2d Dept. 2011); Construction by Singletree v. Lowe, 55 A.D.3d 861 (2d Dept. 2008); Gralnik v. Brighton Beach Assocs., 3 A.D.3d 518 (2d Dept. 2004).

3. See, e.g., Stolarski v. DeSimone, 83 A.D.3d 1042 (2d Dept. 2011); Gerardi v Verizon N.Y., 66 A.D.3d 960 (2d Dept. 2009); Wartski v. C.W. Post Campus of Long Island Univ., 63 A.D.3d 916 (2d Dept. 2009).

4. See Saldivar v. I.J. White Corp., 46 A.D.3d 660, 661 (2d Dept. 2007); Shopsin v. Siben & Siben, 289 A.D.2d 220, 221 (2d Dept. 2001); Cutsogeorge v. Hertz Corp., 264 A.D.2d 752, 753-54 (2d Dept. 1999).

5. See Barchella Contracting Co. v. Cassone, 88 A.D.3d 832 (2d Dept. 2011); Ocampo v. Pagan, 68 A.D.3d 1077 (2d Dept. 2009); Gayz v. Kirby, 41 A.D.3d 782 (2d Dept. 2007); Young v. Long Island Univ., 297 A.D.2d 320 (2d Dept. 2002).

6. See Wall v. Flushing Hosp. Med. Center, 78 A.D.3d 1043 (2d Dept. 2010); Sharp v. Weber, 77 A.D.3d 812 (2d Dept. 2010); Castro v. New York City Health & Hosps. Corp., 74 A.D.3d 1005 (2d Dept. 2010); Cham v. St. Mary’s Hosp. of Brooklyn, 72 A.D.3d 1003 (2d Dept. 2010).