A Potential Legal Malpractice Issue Resolved

Selection of an expert and the use of an expert at summary judgment has been fraught with uncertainty after Construction by Singletree Inc. v. Lowe in which Supreme Court declined to consider an expert affidavit, as no CPLR 3101 had been filed prior to the motion.  Now, in Rivers v Birnbaum   2012 NY Slip Op 06935   Decided on October 17, 2012   Appellate Division, Second Department   Belen, J. the uncertainty is over.
 

"BELEN, J.This case presents us with an opportunity to clarify the rule regarding a court's consideration of an expert's affirmation or affidavit submitted on a timely motion for summary judgment where the offering party did not disclose the expert during discovery pursuant to CPLR 3101(d)(1)(i) before the filing of a note of issue and certificate of readiness. We hold that a party's failure to disclose its experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness does not divest a court of the discretion to consider an affirmation or affidavit submitted by that party's experts in the context of a timely motion for summary judgment. "

"Turning to the legislative history, as originally enacted in 1962, CPLR 3101 exempted expert witnesses from disclosure (see CPLR former 3101 [L 1962, ch 308]; Governor's Program Bill 1985 Memo, Bill Jacket, L 1985, ch 294 at 6). Through the 1985 amendment to CPLR 3101, of which subdivision (d)(1)(i) is a part, the Legislature intended to "expand disclosure" (David D. Siegel, 1986 Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3101:9, at 5), by requiring, for the first time, that parties disclose their experts, but deliberately did so only in the limited context of requiring a party, upon request, to make a pretrial disclosure of expected expert witnesses at trial.

CPLR 3101(d)(1)(i) was originally conceived as part of a major overhaul of medical malpractice litigation procedures. The new requirement in this overhaul that parties disclose their expert trial witnesses was intended to reduce the delay between the "medical malpractice event and the ultimate disposition," which was a major contributor to increased medical malpractice insurance premiums (Governor's Program Bill 1985 Memo, Bill Jacket, L 1985, ch 294 at 9). Therefore, the amendment was conceived as part of a multi-pronged effort "to expedite litigation, to encourage prompt settlements and to deter parties from asserting frivolous claims and defenses" (id. at 9).

Thereafter, the provision was "plucked out" of its place in the original medical malpractice litigation reform bill and made applicable to all forms of litigation (see David D. Siegel, 1986 Supp Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3101:9, at 4; Rep No. 95 of Comm on State Legis, Bill Jacket, L 1985, ch 294 at 16). Modeled on Rule 26 of the Federal Rules of Civil Procedure, the proposed amendment marked a departure from the prohibition on expert disclosure in civil litigation by generally allowing parties "to conduct basic disclosure regarding experts without court order" (1985 Rep of the Advisory Comm on Civ Prac at 49). However, this expansion was relatively limited, as it only required, upon request, pretrial disclosure of the identity and qualifications of each person expected to be called at trial as an expert witness and the substance of their expected testimony, but did not require a party to disclose the experts it had retained but had not determined would be called at trial (see id.; Governor's Program Bill 1985 Memo, Bill Jacket, L 1985, ch 294 at 4 [noting that "(s)ection four (of the bill) would require the disclosure of the qualifications of experts and the substance of their testimony prior to trial in civil actions"]).

Moreover, although the Legislature recognized that "the testimony of expert witnesses is often the single most important element of proof in malpractice and other personal injury actions" (Governor's Program Bill 1985 Memo, Bill Jacket, L 1985, ch 294 at 9), the Legislature limited disclosure inasmuch as it did not provide for examinations before trial of expert witnesses (see Rep No. 95 of Comm on State Legis, Bill Jacket, L 1985, ch 294 at 16; compare id. with Fed Rules Civ Pro 26[b][4][A] ["A party may depose any person who has been identified as an expert whose opinions may be presented at trial"]).[FN6] [*6]

In its current form, CPLR 3101(d)(1)(i) requires a party, upon request, to disclose information regarding each person it expects to call as an expert witness prior to trial, without specifying that such disclosure must be made prior to the filing of the note of issue and certificate of readiness. Further, the language of CPLR 3101(d)(1)(i) anticipates that the disclosure of expert trial witnesses might not occur until near the commencement of trial. As such, the statute implicitly recognizes that parties often delay the retaining of an expert until it is apparent that settlement is unlikely and a trial will be necessary. Significantly, even if a party has retained an expert during discovery and is the recipient of a CPLR 3101(d)(1)(i) request for trial expert disclosure, it has no affirmative obligation to disclose that expert during discovery unless it "expects to call [that expert] as an expert witness at trial" (CPLR 3101[d][1][i]; see Vigilant Ins. Co. v Barnes, 199 AD2d 257).

Based on the plain language and intent of the statute, which do not automatically preclude experts disclosed near the commencement of trial from testifying at trial, there is no basis for concluding that a court must reject a party's submission of an expert's affidavit or affirmation in support of, or in opposition to, a timely motion for summary judgment solely because the expert was not disclosed pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness, or prior to the making of the motion [FN7]. We further note that a court has the discretion, under its general authority to supervise disclosure, to impose a specific deadline for expert disclosure under CPLR 3101(d)(1)(i), for example, prior to the filing of a note of issue and certificate of readiness or prior to a motion for summary judgment (see Mauro v Rosedale Enters., 60 AD3d 401). Moreover, where a trial court sets a specific deadline for expert disclosure, it has the discretion, pursuant to CPLR 3126, to impose appropriate sanctions if a party fails to comply with the deadline (see MacDonald v Leif, 89 AD3d 995; Pirro Group, LLC v One Point St., Inc., 71 AD3d 654; Bomzer v Parke-Davis, 41 AD3d 522; Maiorino v City of New York, 39 AD3d 601) .

We recognize that certain decisions of this Court may have been interpreted as standing for the proposition that a party's failure to disclose its experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness, by itself, requires preclusion of an expert's affirmation or affidavit submitted in support of a motion for summary judgment. For example, in Construction by Singletree, Inc. v Lowe (55 AD3d 861), a subcontractor hired in a home construction project commenced an action against the general contractor, J.C. Construction Management Corp. (hereinafter J.C.), and J.C.'s client, Sheldon Lowe, trustee under the Sheldon Lowe declaration of trust dated January 15, 1999 (hereinafter Lowe), to recover money it allegedly was owed in connection with the project. Lowe cross-claimed against J.C. seeking, inter alia, to recover damages for breach of warranty based on J.C.'s allegedly improper installation of the flooring and insulation systems in the home, and seeking payment pursuant to a liquidated damages clause that had been added to the contract between himself and J.C.

After the completion of discovery, J.C. moved for summary judgment dismissing, inter alia, the aforementioned cross claims. In opposition, Lowe submitted, among other things, affidavits from purported experts in the flooring and air conditioning industries, opining that the flooring and insulation systems in the home were faulty, and estimating the costs to repair each system. A majority of the panel of Justices affirmed the determination of the Supreme Court to grant J.C.'s motion for summary judgment, concluding that J.C. established its prima facie entitlement to judgment as a matter of law, and that Lowe failed to raise a triable issue of fact in opposition. As to Lowe's opposition, the majority stated that "[t]he Supreme Court did not improvidently exercise its discretion in declining to consider the affidavits of the purported experts proffered by Lowe, since Lowe failed to identify the experts in pretrial disclosure and served the affidavits after the note of [*7]issue and certificate of readiness attesting to the completion of discovery were filed in this matter" (id. at 863 [emphasis added]). The majority further explained:

"As it is undisputed that Lowe failed to identify any experts in pretrial disclosure whom he intended to call to testify at trial concerning whether the work was faulty or the extent of his alleged compensatory damages arising from that breach of warranty, and did not proffer any explanation for such failure, it was not an improvident exercise of discretion for the Supreme Court to have determined that the specific expert opinions set forth in the affidavits submitted in opposition to the motion for summary judgment could not be considered at trial" (id.).
Additionally, in addressing the dissent by Justice Carni, which concluded that CPLR "3101(d)(1)(i) applies only to an expert whom a party intends to call at trial," and not an expert used in a motion for summary judgment, the majority indicated that the affidavits of Lowe's experts were inadmissible at trial (id.). The majority arguably found the affidavits of Lowe's experts inadmissible in part because of Lowe's failure to disclose its experts prior to the filing of the note of issue and certificate of readiness. Such a conclusion suggests, first, that Lowe's failure to disclose the experts prior to the filing of the note of issue and certificate of readiness rendered the disclosure untimely pursuant to CPLR 3101(d)(1)(i), and, second, that such untimely disclosure rendered the experts' affidavits inadmissible. Indeed, some of our decisions may be interpreted as so holding and as setting forth a bright-line rule in which expert disclosure pursuant to CPLR 3101(d)(1)(i) is untimely if it is made after the filing of the note of issue and certificate and readiness and, thus, in the absence of a valid excuse for such a delay, a court must preclude an affidavit or affirmation from an expert whose identity is disclosed for the first time as part of a motion for summary judgment (see e.g., Stolarski v DeSimone, 83 AD3d 1042, 1044-1045; Ehrenberg v Starbucks Coffee Co., 82 AD3d 829; Pellechia v Partner Aviation Enters., Inc., 80 AD3d 740; Vailes v Nassau County Police Activity League, Inc., Roosevelt Unit, 72 AD3d 804; Gerardi v Verizon N.Y., Inc., 66 AD3d 960; Wartski v C.W. Post Campus of Long Is. Univ., 63 AD3d 916, 917; King v Gregruss Mgt. Corp., 57 AD3d 851, 852-853; Colon v Chelsea Piers Mgt., Inc., 50 AD3d 616; see also DeLeon v State of New York, 22 AD3d 786, 787; Herrera v Lever, 34 Misc 3d 1239[A], 2012 NY Slip Op 50477 [U], *2-4).

We now clarify that the fact that the disclosure of an expert pursuant to CPLR 3101(d)(1)(i) takes place after the filing of the note of issue and certificate of readiness does not, by itself, render the disclosure untimely. Rather, the fact that pretrial disclosure of an expert pursuant to CPLR 3101(d)(1)(i) has been made after the filing of the note of issue and certificate of readiness is but one factor in determining whether disclosure is untimely. If a court finds that the disclosure is untimely after considering all of the relevant circumstances in a particular case, it still may, in its discretion, consider an affidavit or affirmation from that expert submitted in the context of a motion for summary judgment, or it may impose an appropriate sanction.

We further reiterate that a trial court, under its general authority to supervise disclosure deadlines, and consistent with its discretion to supervise the substance of discovery, may impose a specific deadline (for example, prior to the filing of the note of issue and certificate of readiness or prior to the making of a motion for summary judgment), for the disclosure of experts to be used in support of a motion for summary judgment, or who are expected to testify at trial, or both. Moreover, where a trial court has set a specific deadline for expert disclosure, it has the discretion, pursuant to CPLR 3126, to impose appropriate sanctions if a party fails to comply with the deadline (see MacDonald v Leif, 89 AD3d 995; Pirro Group, LLC v One Point St., Inc., 71 AD3d 654; Bomzer v Parke-Davis, 41 AD3d 522; Maiorino v City of New York, 39 AD3d 601) .

As clarified, this rule is consistent both with the statute and with the general purpose of summary judgment itself. Summary judgment is the procedural equivalent of a trial and "must be denied if any doubt exists as to a triable issue or where a material issue of fact is arguable" (Dykeman v Heht, 52 AD3d 767, 769). In considering a motion for summary judgment, the function of the court is not to determine issues of fact or credibility, but merely to determine whether such issues exist (see Gitlin v Chirinkin, 98 AD3d 561; Dykeman v Heht, 52 AD3d at 769; Tunison v D.J. Stapleton, Inc., 43 AD3d 910).

The preclusion of an expert's affirmation or affidavit submitted in the context of a motion for summary judgment based solely on a party's failure to disclose the expert pursuant to [*8]CPLR 3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness does not necessarily advance the court's role of determining the existence of a triable issue of fact. In the context of a motion for summary judgment in a medical malpractice action, generally, a party must submit an affidavit or affirmation from an expert medical provider to meet its prima facie burden, or to raise a triable issue of fact in opposition (see Post v County of Suffolk, 80 AD3d 682, 685; Dunn v Khan, 62 AD3d 828, 829). Precluding an expert's affidavit solely on the ground that the offering party did not disclose the expert's identity pursuant to CPLR 3101(d)(1)(i) prior to the filing of the note of issue and certificate of readiness is not consistent with the purpose and procedural posture of a motion for summary judgment.

In the matter at bar, the Supreme Court providently exercised its discretion in considering the experts' affirmations submitted by the moving defendants, and the additional affidavits submitted by Bliss, in support of their respective motions for summary judgment, despite the fact that they did not disclose those experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of the note of issue and certificate of readiness.[FN8] "