THE USE OF AN EXPERT’S AFFIDAVIT IN OPPOSITION TO MOTIONS FOR SUMMARY JUDGEMENT IN NEW YORK

The rules governing the use of expert witness affidavits to oppose, or support, motions for summary judgement in New York, especially in the Appellate Division, Second Department, often are misunderstood. There are cases in which the trial court does not consider an expert’s affidavit because the party that tries to use it did not disclose the expert before the Note of Issue and Certificate of Readiness were filed, which is when fact discovery should be completed. See Constr. by Singletree, Inc. v. Lowe, 55 A.D.3d 861, 866 N.Y.S.2d 702 (2nd Dept. 2008). There are other cases, especially more recent ones, in which the trial court considers an expert’s affidavit despite the fact that the expert was not disclosed before the Note of Issue and Certificate of Readiness were filed. See Rivers v. Birnbaum, 102 A.D.3d 26, 953 N.Y.S.2d 232 (2nd Dept. 2012). There actually is a hard and fast rule as to whether a party will be able to use such an affidavit: It’s firmly within the trial court’s sound discretion.

As we previously discussed, an expert witness is allowed to provide her opinion at trial when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the experience and understanding of the typical juror. See De Long v. Erie Cnty., 60 N.Y.2d 296, 307, 457 N.E.2d 717, 722 (1983). An expert often also is necessary to oppose, or support, a motion for summary judgement, which is the procedural equivalent of trial. See Rivers v. Birnbaum, supra, 102 A.D.3d 26, 953 N.Y.S.2d 232 (2nd Dept. 2012).

Plaintiffs and defendants both must disclose, prior to trial, the experts they intend to testify on their behalf at trial. The statute that governs expert’s disclosure, however, times the disclosure in terms of a trial, not in terms of a motion for summary judgement. CPLR 3101(d)(1) provides, in relevant part:

d) Trial preparation. 1. Experts. (i) Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify, the qualifications of each expert witness and a summary of the grounds for each expert’s opinion. 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.

[Emphasis supplied].

The problem comes from the fact that parties often wait until close to trial to disclose to their opponents the experts they intend to call at trial. They do this for many reasons, including the expense involved, since most experts command sizable fees and parties often want to be sure that the case will actually go to trial before they incur the expense of retaining an expert to testify at trial. There also is the very human trait of not doing something until it absolutely has to be done; there truly is nothing more productive than the very last minute.

The confusion comes from how the disclosure requirements of CPLR § 3101(d)(1), apply to motions for summary judgement; in particular, when parties need to disclose their experts, and what penalties they face if they fail to meet the deadline.

In Constr. by Singletree, Inc. v. Lowe, 55 A.D.3d 861, 866 N.Y.S.2d 702, (2nd Dept. 2008), the Appellate Division Second Department scared all the procrastinators straight. It upheld the lower court’s decision to bar the use of experts’ affidavits in opposition to a motion for summary judgement because the party that wanted to use them failed to disclose them before the Note of Issue and Certificate of Readiness were filed. Put another way, the parties agreed that all the preliminaries were completed, that the case was ready for trial, and then one of them said, “But wait, there’s more.” The court, however, did not go along.

If you look at the decision in Constr. by Singletree, Inc. v. Lowe, supra, you can see why the trial court issued such a harsh decision. The case involved a house which one of the defendants, J.C. Construction Management Corp, built for the other defendant, Lowe. The plaintiff, Construction by Singletree, Inc., was a subcontractor on the same job which sued the defendants to recover the money it claimed it was owed for its work. The issue on appeal was Lowe’s cross-claims against JC to recover money for what he said was JC’s breach of warranty and to collect the liquidated damages called for in the contract between them; i.e., Lowe alleged JC improperly installed the flooring and insulation systems and should pay him as a result. The only problem was, Lowe evidently waited too long to offer any substantial evidence to back up his claims, and then he tried to save the day by labeling that evidence as expert’s disclosure.

You would think that one of the first things Lowe did was to back up his claims against JC. It’s only fair that your opponent know your claims and the evidence you have to back them up before the case goes to trial; that is what the discovery rules require. It also is hard to convince someone to pay without a reason; it’s much easier to settle a case if you show your opponent the evidence. The problem was that Lowe evidently did not offer evidence of what JC did wrong, how it was wrong, and the damage it caused Lowe, until he absolutely had to. JC moved for summary judgement, arguing, in part, that there was no evidence to support Lowe’s breach of warranty claims; i.e., that Lowe had not offered any evidence that JC had installed the flooring or insulation systems improperly or even that he had suffered any quantifiable damages as a result. Lowe, in opposition to the summary judgement motion, for the first time presented affidavits of experts purporting to show that JC installed the flooring and insulation wrong.

The trial court, evidently impressed by the fact that Lowe waited to disclose the meat of his evidence against JC until well after he should have, and less impressed with the evidence being dressed up as expert’s opinion, refused to consider the experts’ affidavits. What ultimately cost Lowe the decision, though, shows what the real problem was; Lowe could not “demonstrate how the facts set forth in the experts’ affidavits could otherwise be established at trial.” Constr. by Singletree, Inc. v. Lowe, supra, 55 A.D.3d 861, 863, 866 N.Y.S.2d 702, 704 (2nd Dept. 2008).

What often is overlooked is that the Second Department in Constr. by Singletree, Inc. v. Lowe, supra, did not hold that the experts’ affidavits could not be considered; it held that the trial court had not abused its discretion by refusing to consider them. In other words, it’s up to the trial court to decide whether to consider an expert’s affidavit in support of or opposition to a summary judgement motion when the expert was not disclosed before the Note of Issue and Certificate of Readiness were filed; and the trial court can use that discretion to enforce that there be full, and timely, disclosure of all matters material and necessary to the prosecution or defense of an action. See CPLR 3101(a)(1). Parties should remember that they violate this clear mandate at their peril.

Ray Grasing