Articles Tagged with “Motion Practice”

We spent our last entry talking about when a trial court faced with a motion for summary judgement can consider an affidavit from an expert even though the expert was not disclosed until after the Note of Issue and Certificate of Readiness were filed. The answer, more often than not, at least in the Appellate Division, Second Department in New York: When the expert makes a difference by establishing the existence of a material issue of triable fact. See Rivers v. Birnbaum, 102 A.D.3d 26, 953 N.Y.S.2d 232 (2nd Dept. 2012), and 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).

Rivers v. Birnbaum, supra, and Begley v. City of New York, supra, were not the actual sea changes they might appear to be at first. Though important decisions, the rule they enunciated was applied in many cases before they were decided and the ones in which it was not applied were the exceptions that proved the rule.

King v. Gregruss Mgmt. Corp., 57 A.D.3d 851, 852-53, 870 N.Y.S.2d 103 (2nd Dept. 2008), was a personal injury action in which the plaintiff was injured when he tried to cut open a steel drum containing windshield washer fluid with an electric saw. The Second Department held that the trial court should not have considered the affidavit from the plaintiff’s expert in opposition to the defendants’ various motions for summary judgement and should have precluded the expert from testifying at any stage of the proceedings.

The expert in King v. Gregruss Mgmt. Corp., supra, undoubtedly would have made a difference. It just appears that there was no way to verify the facts on which his opinion was based and his testimony actually was more about basic, critical, and unverifiable facts, than scientific opinion. All told, the case is a fine example of a plan too smart by half, and illustrative of the type of behavior that more often than not will be penalized, if for no other reason than it should be. It is that behavior, more than the simple late disclosure of the expert, which prevented the expert’s affidavit from being considered:
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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:
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The rules regarding expert’s disclosure in New York, concerning when a Plaintiff or Defendant has to disclose to its opponent an expert witness that it intends to testify at trial if it hopes to use the expert’s affidavit in support of or opposition to a motion for summary judgement, might seem confusing. The rules have caused so much misunderstanding that the Appellate Division, Second Department, went out of its way to clarify them, in a recent decision, Rivers v. Birnbaum, 102 A.D.3d 26, 953 N.Y.S.2d 232 (2nd Dept. 2012). The key to understanding the rules is to understand the decision, both its rationale and the reasons the Second Department went out of its way to explain it in the first place.

As we have previously discussed, if a party serves expert’s disclosure after the Note of Issue and Certificate of Readiness has been filed, without moving to vacate the Note of Issue first, the trial court has the discretion to refuse to consider an expert’s affidavit served in regard to a timely motion for summary judgement. See Rivers v. Birnbaum, supra,102 A.D.3d 26, 953 N.Y.S.2d 232 (2nd Dept. 2012), and Constr. by Singletree, Inc. v. Lowe, 55 A.D.3d 861, 866 N.Y.S.2d 702 (2nd Dept. 2008). In other words, a party might still be able to use the expert’s affidavit or it might not; it depends on the trial court and, as long as the trial court does not abuse its discretion, the party has to live with whatever the trial court decides. The real trick is to figure out what constitutes an abuse of discretion.

Before the Second Department decided Rivers v. Birnbaum, supra, last October, there was a widespread, mistaken, belief that a court would not and could not consider an expert’s affidavit in conjunction with a summary judgement motion unless the party that wanted to rely on it disclosed the expert before the Note of Issue and Certificate of Readiness were filed. Many read Constr. by Singletree, Inc. v. Lowe, supra, as creating such a hard and fast rule. Whether that was wishful thinking or panic, it was reading something into the court’s decision that was not there. As we discussed last time, Constr. by Singletree, Inc. v. Lowe, supra, only held that it was not an abuse of discretion for the trial court to refuse to consider such an expert’s affidavit.

Rivers v. Birnbaum, supra, was the perfect vehicle for the Second Department to clarify the rule. It was a medical malpractice action that had a sympathetic plaintiff, a mother who claimed the doctors, hospital, and other health professionals, who cared for her during her pregnancies missed obvious warning signs of gynecological cancer she since has suffered from. At the conclusion of discovery, after the Plaintiff filed the Note of Issue and Certificate of Readiness, many of the defendants moved for summary judgement; they used affidavits from experts, however, that they had not previously disclosed. If there had been a hard and fast rule, as many believed Constr. by Singletree, Inc. v. Lowe, supra, provided, then the defendants would have been precluded from relying on those experts’ affidavits. The trial court, however, even though the plaintiff cried foul, considered the defendants’ experts’ affidavits and granted the defendants summary judgement. The Second Department upheld the decision, and its reasoning is enlightening.

The main point behind the Second Department’s decision in Rivers v. Birnbaum, supra, is that the central purpose of a motion for summary judgement is to determine whether there is a genuine issue of material fact that requires a trial; if there is one, the motion must be denied. As the court said, precluding a party from relying on an expert’s affidavit merely because it did not disclose the expert prior to the conclusion of discovery, would not necessarily achieve that goal. Rivers v. Birnbaum, supra,102 A.D.3d at 42, 953 N.Y.S.2d at 243 (2nd Dept. 2012). In other words, an arbitrary decision to uphold an unclear deadline, may not be the best way to ensure that justice between the parties to a given lawsuit is done. What makes this guiding principal even clearer is that the Second Department explicitly stated that a trial court could impose strict deadlines for the completion of expert’s disclosure and, as long as the deadline was clearly set beforehand, the trial court could sanction a party for violating it. Rivers v. Birnbaum, supra, 102 A.D.3d at 39, 953 N.Y.S.2d at 241 (2nd Dept. 2012).

In Rivers v. Birnbaum, supra, the court found that the defendants, through the use of their experts, had made a prima facie showing, as they were required to in this medical malpractice action, that, in treating plaintiff, they had not deviated from the accepted standard of medical care. It also found that plaintiff had not raised a triable issue of fact about this; it was not even a close call. As the court pointed out in great detail, plaintiff’s experts’ affidavits were vague, conclusory, and otherwise deficient.

Therein lies the key. Why would the court deny summary judgement, and either require a trial or let plaintiff win, when plaintiff could not establish even the arguable existence of a genuine issue of material triable fact in opposition to the summary judgement motions? Precluding the defendants from relying on their experts’ affidavits merely because they had failed to disclose their experts prior to the filing of the Note of Issue and Certificate of Readiness, especially when the trial court had not set that point as the deadline for expert’s disclosure, would be a waste of time and a miscarriage of justice.
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