Category Archives: Civil Procedure

*Two Federal Court Removal Points

An attorney recently consulted with me concerning a removal issue. i.e. What could be done to have his case remanded to state court. After reviewing the case, I concluded that there was nothing that could be done, short of saying that the demand in the case was less than $75,000. I did note however, that because of the date of filing of the petition for removal (it should have been a notice of removal as petitions are no longer needed) by the corporate defendant, there was something that could have been done to prevent the removal in the first place.

CPLR §3017(c) provides in part that:

“…In an action to recover damages for personal injuries or wrongful death, the complaint, … shall contain a prayer for general relief but shall not state the amount of damages to which the pleader deems himself entitled. If the action is brought in the Supreme Court, the pleading shall also state whether or not the amount of damages sought exceeds the jurisdictional limits of all lower courts, which would otherwise have jurisdiction. …”

When this statute became effective, it had the unintended effect of extending, in many if not most instances, the time within which defendants are required to file a notice of removal with the Federal Court, as the language suggested by the statute does not put the defendant on notice that the action seeks damages sufficient to meet the statutory minimum of $75,000 for Federal Court diversity jurisdiction. This discussion assumes proper diversity and no in-state defendant.

28 U.S.C. § 1446(b) provides in part that:

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a … paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 [diversity] of this title more than 1 year after commencement of the action.

Thus in most cases were there has been compliance with CPLR §3017(c), the time to remove won’t begin to run until the defendant’s attorney receives “a supplemental demand setting forth the total damages to which the pleader deems himself entitled,” (which a defendant is entitled to request under CPLR §3017(c).)

I therefore propose that plaintiffs, who wish to impede removal, set forth in their complaint that “damages sought exceed the jurisdictional limits of all lower courts and exceed the minimum necessary for diversity jurisdiction in all federal district courts which would otherwise have jurisdiction” This should start the time within which defendant has to remove, when received by defendant and thus require remand when the defendant does not file within 30 days of receipt of such a complaint.

It should be noted that any written or oral demand for settlement of $75,000 or more, that reaches the defendant or the defendant’s attorney after service of the complaint, can satisfied the requirement of letting the defendant know that the action meets the statutory limit for removal.

In the case I was consulted on, the defendant would not have filed timely if the demand was as I have suggested.

28 U.S.C. § 1446(b) provides in part that:

The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, …

When does receipt occurred, when not personally served upon the defendant? In the case of corporations, service is most often made upon statutory agents and designated agents. The former does not start the 30-day period for removal but the latter does.

In Recyclers Consulting Group v. IBM-Japan, Ltd., 1997 U.S. Dist. LEXIS 15356 (S.D.N.Y. Oct. 3, 1997) The Court concludes that “proper service of the summons and complaint on Defendant’s designee for service, …, triggered the 30-day removal limitations period”

In Cygielman v. Cunard Line Ltd., 890 F. Supp. 305 (S.D.N.Y. 1995) at 307 the court said that “[t]he heavy weight of authority is to the effect that the time for removal, in cases in which service is made on a statutory agent, runs from receipt of the pleading by the defendant rather than the statutory agent … . This makes abundant sense, as the defendant’s right to a federal forum ought not to depend upon the rapidity and accuracy with which statutory agents inform their principals of the commencement of litigation against them.”

And in the case I was consulted on, the designated agent was served, but the filing of removal papers was done based upon the assumption that receipt occurred when the papers were received by the defendant from their designated agent.

*Duties And Obligations of a Lawyer Upon Learning After The Fact, That a Client Has Lied About a Material Issue In a Civil Deposition.

On April 1, 2009, the Rules of Professional Conduct replaced the New York Code of Professional Responsibility. Last month the New York Committee on Professional Ethics issued it first ruling based upon the new rules and abandoned an opinion of 14 year. And while ethics opinion are not binding on the Courts, it is, I believe, rare that they are ignored.

But note, here the opinion presupposes that the lawyer has actual knowledge of the falsity of the testimony and that actual knowledge may be inferred circumstantially.

Date Issued: March 1, 2010

Based upon RPC 3.3,1.6 (set forth below.)

QUESTION: What are a lawyer’s duties and obligations when the lawyer learns after the fact that the client has lied about a material issue in a civil deposition?

DIGEST ANSWER: A lawyer who comes to know after the fact that a client has lied about a material in a deposition in a civil case must take reasonable remedial measures, starting by counseling the client to correct the testimony. If remonstration with the client is ineffective, then the lawyer must take additional remedial measures, including, if necessary, disclosure to the tribunal. If the lawyer discloses the client’s false statement to the tribunal, the lawyer must seek to minimize the disclosure of confidential information. This opinion supersedes NYCLA Ethics Opinion 712.
Ethics Opinion 712, issued in March 1996, provided the following digest answer to a similar question:

DIGEST ANSWER: Where A Client Advises Lawyer That Prior Deposition Testimony Was False, Lawyer May Continue In The Representation Provided That The Lawyer Does Not Knowingly Use The Perjured Testimony Or False Evidence.

The Question in 712 however was more expansive:

QUESTION: The inquirer’s client is a defendant in a civil litigation. After the client provided deposition testimony to the plaintiff, the client advised the lawyer that certain of the testimony was untrue. The facts that are the subject of the false deposition testimony are material to the case so that no objection as to relevance will be available. The deposition transcript, which remains in the lawyer’s possession, has not been signed by the client. The client has rejected the lawyer’s advice to correct the transcript or otherwise rectify the fraud. Discovery has been completed and the case is now on the trial calendar. The inquirer has asked what action he mayor must take to withdraw from the representation and/or to notify the trial judge or opposing counsel of the false deposition testimony of his client.

RULE 3.3: Conduct Before a Tribunal

(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the tribunal controlling legal authority known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) offer or use evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.
(b) A lawyer who represents a client before a tribunal and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reason- able remedial measures, including, if necessary, disclosure to the tribunal.
(c) The duties stated in paragraphs (a) and (b) apply even if compliance requires disclosure of in formation otherwise protected by Rule 1.6.
(d) In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.
(e) In presenting a matter to a tribunal, a lawyer shall disclose, unless privileged or irrelevant, the identities of the clients the lawyer represents and of the persons who employed the lawyer.
(f) In appearing as a lawyer before a tribunal, a lawyer shall not:
(1) fail to comply with known local customs of courtesy or practice of the bar or a particular tribunal without giving to opposing counsel timely notice of the intent not to comply;
(2) engage in undignified or discourteous conduct;
(3) intentionally or habitually violate any established rule of procedure or of evidence; or
(4) engage in conduct intended to disrupt the tribunal.

RULE 1.6: Confidentiality of Information

(a) A lawyer shall not knowingly reveal confidential information, as defined in this Rule, or use such in- formation to the disadvantage of a client or for the advantage of the lawyer or a third person, unless:
(1) the client gives informed consent, as defined in Rule 1.0(j);
(2) the disclosure is impliedly authorized to advance the best interests of the client and is either reasonable under the circumstances or customary in the professional community; or
(3) the disclosure is permitted by paragraph (b).
“Confidential information” consists of information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential. “Confidential information” does not ordinarily include (i) a lawyer’s legal knowledge or legal research or (ii) information that is generally known in the local community or in the trade, field or profession to which the information relates.
(b) A lawyer may reveal or use confidential information to the extent that the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime;
(3) to withdraw a written or oral opinion or representation previously given by the lawyer and reasonably believed by the lawyer still to be re- lied upon by a third person, where the lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud;
(4) to secure legal advice about compliance with these Rules or other law by the lawyer, another lawyer associated with the lawyer’s firm or the law firm;
(5) (i) to defend the lawyer or the lawyer’s employees and associates against an accusation of wrongful conduct; or (ii) to establish or collect a fee; or
(6) when permitted or required under these Rules or to comply with other law or court order.
(c) A lawyer shall exercise reasonable care to prevent the lawyer’s employees, associates, and others whose services are utilized by the lawyer from disclosing or using confidential information of a client, except that a lawyer may reveal the information permitted to be disclosed by paragraph (b) through an employee.

*Noseworthy Doctrine, Passing Through a Red Light, The Brake Failure Defense, and Summary Judgement in Light of Possible Culpable Conduct by Plaintiff

Judge DeGrasse’s decision in Tselebis v Ryder Truck Rental, Inc., decided by the Appellate Division, First Department on February 18, 2010 has a number of things to remember in the areas of automobile liability, motions for summary judgment, and the Noseworthy Doctrine.

Tselebis involved a two-vehicle accident at an intersection controlled by a traffic light. Plaintiff testified that he had no recollection of the accident and the defendant driver testified that he entered the intersection against a red light, did not see plaintiff prior to the impact, and claimed brake failure for the cause of the accident.

    Noseworthy Requires More Than Mere Memory Loss

“As a preliminary matter, Supreme Court correctly rejected plaintiff’s argument that his alleged memory loss entitled him to a lesser degree of proof under Noseworthy v City of New York (298 NY 76 [1948]). In the absence of medical evidence establishing the loss of memory and its causal relationship to defendants’ fault, the question of a lesser degree of proof cannot be considered (see Sawyer v Dreis & Krump Mfg. Co., 67 NY2d 328, 335 [1986]).”

    Entering an Intersection While the Traffic Light is Red is Negligence

“Nevertheless, summary judgment in favor of plaintiff is warranted by the proof before the court. Melendez’s admission that he entered the intersection while the traffic light was red constituted a prima facie showing showing of liability on his part (cf. Diasparra v Smith, 253 AD2d 840 [1998]).

    Brake Failure as a Defense, Requires More Than Mere Brake Failure

“The proffer of brake failure by Melendez and his employer, defendant Tom Cat Bakery, as a cause of the accident, is insufficient to raise a triable factual issue with respect to their liability. A defendant claiming brake failure must make a two-pronged showing that the accident was caused by an unanticipated problem with the vehicle’s brakes, and that he exercised reasonable care to keep them in good working order (O’Callaghan v Flitter, 112 AD2d 1030 [1985]). These defendants have failed to meet the first prong in light of Melendez’s testimony of problems he experienced with the truck’s brakes prior to the accident.”

    Plaintiff’s Culpable Conduct Not a Bar to Summary Judgment

“Plaintiff is entitled to summary judgment on the issue of liability despite the fact that his own negligence might remain an open question. A plaintiff’s culpable conduct no longer stands as a bar to recovery in an action for personal injury, injury to property or wrongful death. Under CPLR 1411, such conduct merely acts to diminish the plaintiff’s recovery in proportion to the culpable conduct of the defendants. This statute, enacted in 1975, substituted the notion of comparative fault for the common-law rule that barred a plaintiff from recovering anything if he or she was responsible to any degree for the injury (Alexander, McKinney’s CPLR Practice Commentaries C1411:1). Here, plaintiff’s own negligence, if any, would have no bearing on defendant’s liability. Stated differently, it is not plaintiff’s burden to establish defendants’ negligence as the sole proximate cause of his injuries in order to make out a prima facie case of negligence (see Kush v City of Buffalo, 59 NY2d 26, 32-33 (1983]). To establish a prima facie case, a plaintiff “must generally show that the defendant’s negligence was a substantial cause of the events which produced the injury(Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980] [emphasis added]).

We note that opinions by this Court and others suggest that freedom from comparative negligence is a required component of a plaintiff’s prima facie showing on a motion for summary judgment (see e.g. Palmer v Horton, 66 AD3d 1433 [2009]; Cator v Filipe, 47 AD3d 664 [2008]; Thoma v Ronai, 189 AD2d 635 [1993], affd 82 NY2d 736 [1993]). These opinions cannot be reconciled with CPLR 1411 if the statute is to be given effect.”

*Supreme Court Adopts “Nerve Center” Test for Determining a Corporation’s “Principal Place of Business,” for Diversity Purposes.

Pursuant to 28 USC § 1332, a corporation shall, for the purposes of determining diversity “be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business, except that in any direct action against the insurer of a policy or contract of liability insurance, whether incorporated or unincorporated, to which action the insured is not joined as a party-defendant, such insurer shall be deemed a citizen of the State of which the insured is a citizen, as well as of any State by which the insurer has been incorporated and of the State where it has its principal place of business.”

Where a corporation’s “principal place of business” is, has engendered various tests, such as “total activities,” “center of gravity,” “nerve center,” “locus of operations,” or “center of corporate activities.” Judge Breyer, writing for a unanimous Supreme Court, this past week, in Hertz Corp. v. Friend et al., set forth which test is the one to use now.

In Hertz he wrote that “[i]n an effort to find a single, more uniform interpretation of the statutory phrase, [“principal place of business,”] we have reviewed the Courts of Appeals’ divergent and increasingly complex interpretations. … . We conclude that “principal place of business” is best read as referring to the place where a corporation’s officers direct, control, and coordinate the corporation’s activities. It is the place that Courts of Appeals have called the corporation’s “nerve center.” And in practice it should normally be the place where the corporation maintains its headquarters—provided that the headquarters is the actual center of direction, control, and coordination, i.e., the “nerve center,” and not simply an office where the corporation holds its board meetings (for example, attended by directors and officers who have traveled there for the occasion).
… [T]his approach, while imperfect, is superior to other possibilities.”

*My Additional Notice of Motion Language – In light of 2007 Amendments.

It has come to my attention that in State Court actions some people are still not using (possibly due to the reliance on forms) the language on notices of motion that require an adversary to serve a cross motion seven days before the return date (instead of three days) and to bring to an adversaries attention the new rules governing the timing for service by mail or overnight delivery of cross motions (although my PLEASE TAKE FURTHER NOTICE speaks to answering papers as well.) I suggest the following (and include the statutory language below.) Any comments regarding changes will be appreciated.

PLEASE TAKE FURTHER NOTICE that pursuant to Rule 2214(b) of the CPLR, answering affidavits, affirmations or any notice of cross-motion, with supporting papers, if any, shall be served at least seven days before the time this motion is noticed to be heard.

PLEASE TAKE FURTHER NOTICE that pursuant to Rule 2215 of the CPLR, if such answering affidavit, affirmation or notice and any supporting papers are served by mailing, as provided in paragraph two of subdivision (b) of rule 2103, they shall be served three days earlier than as prescribed in Rule 2215; and if served by overnight delivery, as provided in paragraph six of subdivision (b) of rule 2103, they shall be served one day earlier than as prescribed in Rule 2215.


Rule 2214. Motion papers; service; time.
(b) Time for service of notice and affidavits. A notice of motion and supporting affidavits shall be served at least eight days before the time at which the motion is noticed to be heard. Answering affidavits shall be served at least two days before such time. Answering affidavits and any notice of cross-motion, with supporting papers, if any, shall be served at least seven days before such time if a notice of motion served at least sixteen days before such time so demands; whereupon any reply or responding affidavits shall be served at least one day before such time.

Rule 2215. Relief demanded by other than moving party.
At least three days prior to the time at which the motion is noticed to be heard, or seven days prior to such time if demand is properly made pursuant to subdivision (b) of rule 2214, a party may serve upon the moving party a notice of cross-motion demanding relief, with or without supporting papers; provided, however, that:
(a) if such notice and any supporting papers are served by mailing, as provided in paragraph two of subdivision (b) of rule 2103, they shall be served three days earlier than as prescribed in this rule; and
(b) if served by overnight delivery, as provided in paragraph six of subdivision (b) of rule 2103, they shall be served one day earlier than as prescribed in this rule.
Relief in the alternative or of several different types may be demanded; relief need not be responsive to that demanded by the moving party.

Rule 2103. Service of papers.
(b) Upon an attorney. Except where otherwise prescribed by law or order of court, papers to be served upon a party in a pending action shall be served upon the party’s attorney. Where the same attorney appears for two or more parties, only one copy need be served upon the attorney. Such service upon an attorney shall be made:

2. by mailing the paper to the attorney at the address designated by that attorney for that purpose or, if none is designated, at the attorney’s last known address; service by mail shall be complete upon mailing; where a period of time prescribed by law is measured from theservice of a paper and service is by mail, five days shall be added to the prescribed period; or

6. by dispatching the paper to the attorney by overnight delivery service at the address designated by the attorney for that purpose or, if none is designated, at the attorney’s last known address. Service by overnight delivery service shall be complete upon deposit of the paper enclosed in a properly addressed wrapper into the custody of the overnight delivery service for overnight delivery, prior to the latest time designated by the overnight delivery service for overnight delivery. Where a period of time prescribed by law is measured from the service of a paper and service is by overnight delivery, one business day shall be added to the prescribed period. “Overnight delivery service” means any delivery service which regularly accepts items for overnight delivery to any address in the state; or

*Discovery of a Copy of the Defendant’s Insurance Policy and Then Some.

Judge Ruchelsman of Supreme Kings just recently in Madar v 1333 Realty LLC, vacated a settlement of $25,000, because the defendant’s attorneys had mistakenly asserted that the defendant’s coverage was $25,000 instead of $250,000.

What I found interesting in this case was that one of defendant’s arguments against vacating the settlement, was that “plaintiff’s counsel could have requested to examine the declaration page or engaged in some discovery which would have revealed the error, thus, in essence it is the plaintiff who has acted with ‘unclean hands.’”

Why is this interesting? It is because on those occasions when I have requested at a preliminary or compliance conference that defendant produce their insurance policy, and not just the coverage amounts, I have universally been met with a resounding “no way!” So here, defendant’s arguments sounds as viable as that of a child being sentenced for the murder of his parents arguing that compassion should be shown by the Court because the defendant is an orphan.

C.P.L.R. 3101(f) provides that “A party may obtain discovery of the existence and contents of any insurance agreement under which any person carrying on an insurance business may be liable to satisfy part or all of a judgment which may be entered in the action or to indemnify or reimburse for payments made to satisfy the judgment. …”

In the First (Clarendon Natl. Ins. Co. v Atlantic Risk Mgt., Inc. ,) Second (Sullivan v Brooklyn-Caledonian Hospital,) Third (Morris v. Clements,) and Fourth (Anderson v House of Good Samaritan Hosp) Departments this has been interpreted to mean that the statute entitles plaintiff to disclosure of the policies themselves. Why defendants continue to object and why Courts agree with them, will remain a mystery to me.

But the problem that arose in Madar, strongly suggest that plaintiffs obtain a copy of defendant’s policy in all cases. But that is not the end of the story as, there is more that the plaintiff requires. In Folgate v. Brookhaven Memorial Hospital Plaintiff argued and the Court agreed that “he is entitled to know the number of claims brought against the defendant during the applicable policy period, the amount sought in each such claim and the amount already paid. Plaintiff asserts that without this information he cannot determine in advance of judgment the funds which may be available to him from defendant’s policy should he recover.” The Second Department is in agreement with this discovery policy. See Pamela Brandes v North Shore University Hospital. Judge York of Supreme New York, however did not allow such discovery in Weiner v. Lenox Hill Hospital and then the 1st Department in Weiner v. Lenox Hill Hosp., 224 A.D.2d 299 held that the order of Judge York “is unanimously affirmed for the reasons stated by York, J.” So until the Court of Appeals speaks on this issue, the right to obtain this information will depend upon where your case is pending.

*Vehicle and Traffic Law § 1104 (e) Cannot be Used as a Sword to Ward Off a Comparative Fault Defense

Vehicle and Traffic Law §1104 governs the conduct of the driver of an authorized emergency vehicle**, when involved in an emergency operation. And subsection (e) precludes the imposition of tort liability except where the conduct rises to the level of recklessness.

V&TL §1104(e) provides that: “The foregoing provisions shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.”

In Ayers v O’Brien, decided on December 17, 2009, a unanimous Court of Appeals held that an emergency vehicle operator may not assert that statute in an action in which he is the plaintiff, to prevent the defendant from raising a comparative fault defense based upon mere negligence and assumption of the risk.

The Court, by way of a footnote, citing Aldrich v Sampier, 2 AD3d 1101, 1103 (3d Dept 2003), points out that had a viable claim been made under General Municipal Law § 205-e, the result would have been different as comparative fault is not a defense in a General Municipal Law § 205-e action.

** An authorized emergency vehicle is defined by V&TL 101 as “every ambulance, police vehicle, fire vehicle, civil emergency vehicle, emergency ambulance service vehicle, environmental response vehicle, sanitation patrol vehicle, hazardous materials vehicle, and ordnance disposal vehicle of the armed services of the United States.”

*Show Me the Money! Or at a Minimum, Show it to the Sheriff to Stop the Auction.

I always love to cite to old cases. The Court of Appeals in Rondack Constr. Servs., Inc. v Kaatsbaan Intl. Dance Ctr., Inc. got to do just that with a case from 1875, when it unanimously held on December 15, 2009 that “a judgment debtor’s tender to the sheriff before its property is auctioned at a judicial sale automatically discharges the execution lien, terminating the sheriff’s authority to sell the property.” In doing so, the Court reaffirmed Tiffany v St. John 65 NY 314 (1875)

In Rondack the plaintiff, prior to an auction of the plaintiff’s property to satisfy a judgment, offered the sheriff “an amount sufficient to satisfy the judgment, together with interest, poundage and other related fees.” but it was declined by the Sheriff and the auction proceeded.

“In Tiffany, the sheriff levied on a judgment debtor’s boat pursuant to an execution and proceeded to sell it at a public auction. Before bidding began, the judgment debtor tendered to the sheriff an amount sufficient to satisfy the judgment and all associated costs. The sheriff refused the tender and sold the boat to the highest bidder. Analogizing to the common-law equity of redemption in the mortgage foreclosure context, this Court held more than a century ago that, under these circumstances, the tender was the equivalent of payment and had the “instantaneous effect” of discharging the lien created by the execution (65 NY at 318). Consequently, the sheriff lost the authority to sell the property, resulting in an improper conveyance.

A property owner who desires to tender the appropriate amount before the actual sale is free to do so without the need to move under CPLR 5240. Stated differently, property owners possess a common-law right under Tiffany to redeem their property before sale without judicial intervention.

Here, as in Tiffany, Kaatsbaan timely tendered an amount sufficient to satisfy the judgment and all fees and expenses. Kaatsbaan’s tender extinguished the lien and foreclosed the sale of the property. The Appellate Division therefore properly granted Kaatsbaan’s motion to set aside the sale and compel the Sheriff to accept its check in full satisfaction of the judgment.”

*Local Rules of the United States District Courts for the Southern and Eastern Districts of New York

Now that they are in effect, I have added the Eastern District version of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York to my link list.

Late Expert Disclosure Affidavits Now Permitted To Be Used Pursuant to CPLR R3212 on Motions for Summary Judgment

***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] [1] [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.

***Now permitted to be used pursuant to CPLR R3212.***