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The Use of Expert Affidavits in the Second Department for Summary Judgment Motions

April 9, 2012 • Posted By Lance E. Benowitz • Trial Practice

The Second Department decisions regarding the use of an expert affidavit to oppose a motion for summary judgment had been quite predictable. The Second Department was known for their preclusion of experts offered in opposition to summary judgment motions where the experts were not exchanged prior to the filing of the Note of Issue. The Second Department had consistently held that it is a proper exercise of the trial court’s discretion to bar expert affidavits submitted for the first time in opposition to a summary judgment motion.  See Construction by Singletree, Inc. v. J.C. Construction Mgmt. Corp., 55 A.D.3d 861 (2d Dept 2008); See also Yax v. Development Team, Inc., 67 A.D.3d 1003 (2nd Dept. 2009).  It had been routinely held that an expert must be precluded when the expert is not identified in pretrial disclosure and when an expert affidavit is “elicited solely to oppose the defendant’s motion for summary judgment, after filing a note of issue and certificate of readiness attesting to the completion of discovery.”  Safrin v. DST Russian & Turkish Bath, Inc., 16 A.D.3d 656, 657, 791 N.Y.S.2d 443, 444 (2d Dep’t 2005); see also Dawson v. Cafiero, 292 A.D. 2d 488, 489, 739 N.Y.S.2d 190, 191 (2d Dep’t 2002) (“The Supreme Court providently exercised its discretion in rejecting the affidavits of two purported experts proffered by the plaintiffs, as they did not identify these experts in their pretrial disclosure, and served the affidavits after filing a Note of Issue attesting to the completion of discovery”); see also Gerardi v Verizon N.Y., Inc., 66 AD3d 960, 961 (2nd Dept 2009]; Wartski v C.W. Post Campus of Long Is. Univ., 63 AD3d 916, 917 (2nd Dept 2009).

However, the Second Department has at times deviated from this seemingly established stance of preclusion. In Brown v. Smith, 65 A.S.3d 996 (2nd Dept 2009), plaintiff’s submitted an expert affidavit in opposition to defendant’s motion for summary judgment. The Court held that since “there was no evidence that the failure to disclose was intentional or willful,…there was no showing of prejudice to the defendants [and that]…defendants had sufficient time to respond to the plaintiffs’ submissions”, that even though plaintiff had failed to provide the expert disclosure prior to the filing of the Note of Issue, it was properly considered by the lower court. The Brown decision seems to harken back to the time before Singletree, Yax and Safrin and conjures up the decision in Simpson v. Tenore and Guglielmo, et al., 287 A.D.2d 613 (2nd Dept 2001). In Simpson, the court allowed consideration of the plaintiffs’ expert affidavit finding that “[T]here is no evidence that the plaintiff intentionally or willfully failed to disclose the identity of his expert witness, nor has prejudice to the defendants been shown. Under these circumstances, the Supreme Court providently exercised its discretion in considering the expert's affidavit despite the plaintiff's failure to serve a notice pursuant to CPLR 3101 (d) (1) (i).” Id. at 613.

In defying any set rules regarding the use of expert affidavits, the Second Department in a fairly recent decision, goes back the other way, precluding the use of an expert affidavit in support of a motion for summary judgment. In Stolarski v. DeSimone, the Court held that an expert affidavit in support of a motion for summary judgment must also be precluded when the expert is not identified in pretrial disclosure and the party has offered no valid excuse for the delay. 83 A.D.3d 1042, 922 N.Y.S.2d 151 (2nd Dept. 2011).

In sum, what once appeared in the Second Department to be a fairly rigid rule preluding the use of an expert affidavit disclosed solely to oppose a summary judgment motion, has been fractured to take into consideration whether the failure to disclose was intentional or willful and if there is any showing of prejudice to the party moving for summary judgment. Though, it still is always better practice to provide notice pursuant to CPLR 3101 (d) (1) (i), prior to the filing of the Note of Issue, especially if you plan on using that expert’s affidavit in your motion for, or opposition to, summary judgment.