Expert Discovery Still Very Squishy
What are the rules for use of experts, including when they must be revealed, how they must be noticed, and how a CPLR 3101 notice interacts with jury selection dates? The answer is that no one knows.
Frankel v Vernon & Ginsburg, LLP 2014 NY Slip Op 04136 Decided on June 10, 2014 Appellate Division, First Department is a prime example. Plaintiff sends a CPLR 3101 notice that is said to be insufficient. Supreme Court incorrectly precludes. The deficiency is cured by a further notice. This is just before trial
."Supreme Court incorrectly precluded plaintiff's legal malpractice expert from testifying on the ground that the initial disclosure was insufficiently detailed. Defendants objected to the disclosure's sufficiency for the first time in their omnibus motion in limine, presented to the court on the day trial was to begin. Any deficiency was cured by plaintiff's service of a more detailed supplemental disclosure four days later. Moreover, defendants were aware of the substance of the expert's proposed testimony because plaintiff had previously submitted the expert's affidavit in opposition to their motion for summary judgment. As Supreme Court found, defendants have not established that they were prejudiced by receipt of the expert disclosures 4 days after the 30-day minimum set by local rule, or that the delay was willful or intentional (see Ramsen A. v New York City Hous. Auth., 112 AD3d 439, 440 [1st Dept 2013])."
"To establish causation in this legal malpractice action, plaintiff must show that his decedent would have prevailed in the underlying action but for the attorney defendants' negligence (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 ). In the underlying action, plaintiff's decedent asserted causes of action for breach of the warranty of habitability against her cooperative apartment building and for private nuisance against her upstairs neighbors. Accordingly, at trial, to demonstrate the merit of the underlying claim of private nuisance, plaintiff should be permitted to prove, among other things, that his decedent's neighbors intended to cause the nuisance (see Copart Indus. v Consolidated Edison Co. of N.Y., [*2]41 NY2d 564, 570-571 ). The neighbors' testimony is relevant to the issue of intent. Therefore, the court improperly precluded that testimony."