What a Difference a Triable Issue of Fact Can Make: The Use of Experts to Oppose Motions for Summary Judgement in New York, Revisited.

It has been some time since we last spoke about the use of experts to oppose motions for summary judgement in New York. The topic, however, is still relevant. Some continue to believe there is a hard and fast rule, at least in the Appellate Division, Second Department, which forbids a trial court from considering an affidavit from an expert unless the party offering the expert’s affidavit served full expert’s disclosure pursuant to CPLR 3101(d)(1) prior to the filing of the Note of Issue and Certificate of Readiness or at least moved to vacate the Note of Issue and Certificate of Readiness if they had not served expert’s disclosure by then. As we pointed out in our last entries on the subject, there is no such concrete rule and there never really was. A case that should go to trial most often does; it withstands a motion for summary judgement, unless the party who uses the affidavit nefariously refused to disclose the expert in time.

There have been a series of decisions that have clarified that this is the rule. The first was Rivers v. Birnbaum, 102 A.D.3d 26, 953 N.Y.S.2d 232 (2nd Dept. 2012). Another, more recent example, is Begley v. City of New York, 111 A.D.3d 5, 972 N.Y.S.2d 48, 72 (2nd Dept. 2013), leave to appeal denied, 23 N.Y.3d 903, 988 N.Y.S.2d 130 (2014), which is especially instructive because of the way it summarizes the reasons for the rule. It holds, in relevant part:

With regard to Timothy’s motion for summary judgment, we first address the plaintiffs’ claim that the Supreme Court should have disregarded the expert affidavit of registered nurse Maureen Walls Sileo because Timothy failed to disclose her expert’s identity prior to the completion of discovery. Although CPLR 3101(d)(1)(i) requires a party, upon request, to identify the expert witnesses the party expects to call at trial, it “does not require a party to respond to a demand for expert witness information ‘at any specific time’ ” (Aversa v. Taubes, 194 A.D.2d 580, 582, 598 N.Y.S.2d 801, quoting Lillis v. D’Souza, 174 A.D.2d 976, 976, 572 N.Y.S.2d 136; see Rivers v. Birnbaum, 102 A.D.3d 26, 35, 953 N.Y.S.2d 232). Thus, “the fact that the disclosure of an expert pursuant to CPLR 3101(d)(1)(i) takes place after the filing of the note of issue and certificate of readiness does not, by itself, render the disclosure untimely” (Rivers v. Birnbaum, 102 A.D.3d at 41, 953 N.Y.S.2d 232). We have also recognized that precluding an expert’s affidavit in the context of a summary judgment motion based solely on the failure to provide expert disclosure prior to the filing of the note of issue “does not necessarily advance the court’s role of determining the existence of a triable issue of fact,” particularly in a medical malpractice action, where a party must generally submit an affidavit or affirmation from an expert medical provider to meet its prima facie burden (id. at 42, 953 N.Y.S.2d 232). Thus, “[p]recluding an expert’s affidavit solely on the ground that the offering party did not disclose the expert’s identity pursuant to CPLR 3101(d)(1)(i) prior to the filing of the note of issue and certificate of readiness is not consistent with the purpose and procedural posture of a motion for summary judgment” (id.).

[Emphasis supplied].

The whole point, as the emphasized parts of the aforementioned quote demonstrate, is that the expert’s affidavit should be considered if it can demonstrate the “existence of a triable issue of fact”. Put another way, if the expert’s affidavit shows that there is something a jury needs to decide in order to determine who prevails, if it will in fact make a difference, then the expert’s affidavit should be considered, unless, of course, there is some other, egregious, behavior, which the trial court is well within its power to penalize.

You can see this rule at work even before Rivers v. Birnbaum, supra, and Begley v. City of New York, supra, were decided. That is what we will do next time.

Go raibh maith agat.

Ray Grasing