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Amendment to CPLR limits judge's discretion in rejecting expert affidavits

A recent amendment to New York Civil Practice Law and Rules 3212 (b) makes it easier to use affidavits of previously undisclosed experts in motions for summary judgment.

The amendment, which was signed into law by Governor Cuomo and went into effect on December 11, 2015, provides,
"Where an expert affidavit is submitted in support of, or opposition to, a motion for summary judgment, the court shall not decline to consider the affidavit because an expert exchange pursuant to subparagraph (i) of paragraph (1) of subdivision (D) of Section 3101 was not furnished prior to the submission of the affidavit."

The amendment comes in reaction to a line of recent decisions, Rivers v. Birnbaum, 102 A.D.3d 26 (2d Dep't 2012), Construction by Singletree, Inc. v. Lowe, 55 A.D.3d 861 (2d Dep't 2008), Garcia v. New York, 98 A.D.3d 857 (1st Dep't 2012), DeSimone v. New York, 119 A.D.3d 422 (1st Dep't 2014), in various of the judicial departments that permitted motion court judges, in an exercise of discretion, to decline to consider expert affidavits submitted in support of or in opposition to, summary judgment motions where the proponent of the affidavit did not identify the expert by serving a CPLR 3101(d)(1)(i) exchange prior to the filing of the note of issue.

Judges applying those decisions were probably expected to consider much more than whether the proponent's expert disclosures were timely. As the court explained in Rivers v. Birnbaum, 102 A.D. 3rd 26 (2d Dep't 2012),

"[T]he determination of whether and to what extent a penalty should be imposed upon a party for its failure to comply with CPLR 3101 (d)(1)(i) is left to the providently exercised discretion of the court. In considering whether preclusion is an appropriate penalty for noncompliance, a court should look to whether the party seeking to avoid preclusion has demonstrated good cause for its noncompliance, whether the noncompliance was willful or whether it served to prejudice the other party, and any other circumstances which may bear on the appropriateness of preclusion. These may include, but are not limited to, the length of time that has passed since the commencement of the litigation, the amount of time that has passed since expert disclosure was demanded, and the extent to which the nature of the case or the relevant theories asserted therein rendered it apparent that expert testimony would be necessary to prosecute or defend the matter."

Perhaps the legislature intended to avoid the rote rejection of expert affidavits for no other reason than failure to identify experts prior to filing of the Note of Issue.

As always, a discovery rule raises new considerations. For instance, can the motion court judge decline to consider an expert affidavit for such reasons discussed in the Rivers decision, as long as the rejection is not based solely on CPLR 3101(d)? Can the judge assigned to the case limit the use of such affidavits, for example, by imposing a deadline for CPLR 3101 (d) expert exchanges in a Preliminary Conference Order? In the event of such a deadline, does the new CPLR 3212 (b) apply, or may the judge disregard the affidavit because the party submitting it disobeyed the Preliminary Conference (and possibly Compliance Conference) Order?

If you have questions about new amendments to the CPLR or other issues concerning practice issues in New York courts, contact Michael E. Gorelick, Glenn A. Jacobson or Steven DiSiervi.