NY Plaintiffs Can Now Utilize Expert Affidavits in Opposition to Motions for Summary Judgment without Prior Expert Disclosure

Recent Change to New York’s to CPLR 3212(b)

As you may be aware, New York’s Civil Practice Law and Rules (CPLR) Section 3212 governs motions for summary judgment.  CPLR 3212(b) was amended, effective December 11, 2015, to allow the lower court, in support or opposition to a summary judgment motion, to consider an expert affidavit whether or not such expert has been previously disclosed.

The amended law now provides, in part, “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 overturns a line of decisions, including Construction by Singletree, Inc. v. Lowe, 55 A.D.3d 861 (2d Dept., 2008); Garcia v. New York, 98 A.D.3d 857 (1st Dept., 2012), Rivers v. Birnbaum, 102 A.D.3d 26 (2d Dept., 2012) and DeSimone v. New York, 2014 N.Y. Slip Op 06667 (1st Dept., 2014), which permitted trial judges, in an exercise of their judicial discretion, to decline to consider expert affidavits where the expert was not disclosed pursuant to CPLR 3101(d) prior to the filing of the Note of Issue.

The rationale behind the amendment is that the holdings in Singletree and Rivers:

1. Imposed a temporal requirement for noticing expert witnesses in contravention of CPLR 3101(d)(1)(i) and precluded otherwise admissible expert testimony in the context of a summary judgment motion; and,
2. Contravened CPLR 3101(d)(1)(i) regarding noticing of experts for trial in relation to the date set for trial.

The amendment takes effect immediately and shall apply to all pending cases where a summary judgment motion is made on or after the effective date.

Examining the Effects of the Amendment

Based upon this change, plaintiffs can now utilize expert affidavits in opposition to motions for summary judgment, or, conversely, incorporate expert affidavits in support of summary judgment motions even where they have not provided expert disclosure prior to the motion practice.  Defense counsel can also utilize the same strategy. 

This rule change will likely lead to more summary motion denials as the opponent to summary judgment motions will retain an expert at the last minute simply to oppose the motion.  Please note that in the more significant cases plaintiffs will have already retained an expert, as would the defense counsel. Therefore, the rule change will not have a significant effect other than permitting the opponent to withhold expert disclosure until absolutely necessary.

Also consider that the recent change will force the opponent to the motion to identify their expert as part of their opposition. In many cases this will assist the proponent of the motion at trial by providing the sum and substance of the expert opinion and anticipated trial testimony in advance of trial, thus permitting defense counsel time to prepare for cross examination of the expert at trial.