***Now permitted to be used pursuant to CPLR R3212.***
Recently I have been discussing with some colleagues the position of the Second Department on first time expert disclosure in association with motions for summary judgment after the filing of a note of issue and certificate of readiness, or as I call them “late expert disclosure affidavits.”
As an aside, the First Department in Mauro v Rosedale Enters. 60 AD3d 401 (1st Dept 2009) had an opportunity to rule on this issue but choice not to, because the expert disclosure was inadequate. There they said:
“We need not determine whether the affidavit of plaintiffs’ expert engineer should not have been considered in light of plaintiffs’ failure to identify this expert during pretrial disclosure, despite repeated court orders to do so. The expert affidavit, even if considered, fails to raise a triable issue of fact, instead citing various broad or inapt engineering rules, regulations and standards.” (citations omitted.)
Getting back to the Second Department; Last month the Second Department in Gerardi v Verizon N.Y., Inc. 2009 NY Slip Op 07798, ( October 27, 2009) said in reversing the denial of defendant’s motion for summary judgment that:
“The plaintiff’s expert affidavit should not have been considered in determining the motion since the expert was not identified by the plaintiff until after the note of issue and certificate of readiness were filed attesting to the completion of discovery (see Construction by Singletree, Inc. v Lowe, 55 AD3d 861, 863), and the plaintiff offered no valid excuse for his delay in identifying his expert.“
However the Court then went on to hold that “In any event, even if the plaintiff’s expert affidavit could have properly been considered, the result would not have been different (citation omitted).”
In fact in the half dozen or more cases in the Second Department that I found where late expert disclosure affidavits were rejected on a motion for summary judgment, only one case did not contain the holding that the expert’s affidavit was inadequate.
However when a Second Department trial court considered a late expert disclosure affidavit which made a difference, this is what the Second Department had to say this past September.
“Here, the Supreme Court did not improvidently exercise its discretion in considering the expert materials submitted by the plaintiffs in opposition to the defendants’ summary judgment motion since there was no evidence that the failure to disclose was intentional or willful, and there was no showing of prejudice to the defendants. Moreover, the defendants had sufficient time to respond to the plaintiffs’ submissions.” (citation omitted) Browne v Smith 65 AD3d 996 (2nd Dept 2009)
The Second Department in Hernandez-Vega v Zwanger-Pesiri Radiology Group, 39 AD3d at 710 explained the reasoning for the approval of the use of a late expert affidavit more fully when they said:
“The plaintiffs contend that the Supreme Court erred in considering the expert affidavits submitted by the respondents in support of their respective motions because they had not complied with the plaintiffs’ demand for expert witness information pursuant to CPLR 3101 (d) (1) (i). “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 proffering 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” Contrary to the plaintiffs’ contention, the Supreme Court providently exercised its discretion in considering the affidavits of the respondents’ experts as there was no evidence that the respondents’ failure to disclose was intentional or willful and there was no showing of prejudice to the plaintiffs (citations omitted).”
It is noted that CPLR 3101(d) states that “However, where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert’s testimony at the trial solely on grounds of noncompliance with this paragraph. In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just.” Thus while it seems clear that the expert proponent must show “good cause” for a delay prior to trial for disclosure of its expert, it not so clear when the late expert disclosure affidavit is produced upon a motion for summary judgment.
It is noted that the Fourth Department in Kozlowski V. Alcan Aluminum Corp., 209 A.D.2d 930, 931 (N.Y. App. Div. 4th Dep’t 1994) takes a slightly different route when they rejected “plaintiffs’ contention that the affidavit submitted by defendant’s expert should not be considered because defendant failed to disclose the expert’s identity in a reasonable time pursuant to CPLR 3101 (d) (1) (i). Plaintiffs’ remedy for failure to comply with that section is to move before the IAS court for “whatever order may be just” (CPLR 3101 [d]  [i]).”
Thus while Gerardi and Browne and Hernandez-Vega seem to differ on the burden of proof as to whether a failure to disclose was intentional or willful, I believe that it will all come down to a showing of prejudice in the Second Department, thus placing the burden on the party opposing the late expert disclosure affidavit. And I see nothing to suggest in the cases from the Second Department, that a failure to identify an expert prior to the filing of a note of issue and certificate of readiness, would preclude the use of an expert at trial even if disclosed early enough before trial, as has been suggested by a colleague.
But the best course is to make expert disclosure prior to the filing of a note of issue and certificate of readiness, so as to avoid a distracting fight on the timing of the disclosure on a motion for summary judgment or at trial.