Expert disclosure in New York is truely a black hole.  The statute does not require much by way of naming the expert.  You have to give the name and a little bit about what the expert will say.  However, the timing is completely up to court discretion.  Here is what one plaintiff did in a pinch.

Mazzurco v Gordon 2019 NY Slip Op 04930  Decided on June 19, 2019 Appellate Division, Second Department allowed plaintiff to pay his way out of a jam.

“During a pretrial conference on September 25, 2017, after jury selection, but before opening statements, at the Supreme Court’s request for a list of his witnesses, the plaintiff, for the first time, identified, among others, a damages expert. The defendants made an application, inter alia, to preclude the testimony of the proposed damages expert for failure to comply with CPLR 3101(d)(1)(i), and, upon such preclusion, to dismiss the complaint. In an order dated October 6, 2017, upon granting the plaintiff’s application for a continuance of the trial conditioned, inter alia, on the payment of the sum of $7,500 by the plaintiff’s counsel to the defendants and/or their counsel, the court denied those branches of the defendants’ application which were to preclude the plaintiff’s damages expert from testifying at trial and to dismiss the complaint upon such preclusion. The defendants appeal.

CPLR 3101(d)(1)(i) requires a party to disclose his or her expert witness and certain expert information when served with a proper demand, but does not require a response at any [*2]particular time or “mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute” (Rowan v Cross Country Ski & Skate, Inc., 42 AD3d 563, 564; see Rivers v Birnbaum, 102 AD3d 26, 35; Saldivar v I.J. White Corp., 46 AD3d 660, 661). Trial courts are vested with broad discretion “in making determinations concerning matters of disclosure,” including imposing a penalty on a party for its failure to comply with CPLR 3101(d)(1)(i) (Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d 201, 209; see Rivers v Birnbaum, 102 AD3d at 52; McColgan v Brewer, 84 AD3d 1573, 1576). Generally, preclusion is unwarranted without evidence of intentional or willful failure to disclose and a showing of prejudice by the party seeking preclusion (see Rowan v Cross Country Ski & Skate, Inc., 42 AD3d at 564; Aversa v Taubes, 194 AD2d 580, 582). Here, there was no evidence that the plaintiff’s failure to disclose his damages expert was intentional or willful, and the prejudice to the defendants was alleviated by the Supreme Court’s conditional continuance of the trial to permit completion of expert disclosure along with the imposition of monetary sanctions (see Burbige v Siben & Ferber, 115 AD3d 632, 633, citing Shopsin v Siben & Siben, 289 AD2d 220; Aversa v Taubes, 194 AD2d at 582). Accordingly, the court providently exercised its discretion in denying those branches of the defendants’ application which were to preclude the plaintiff’s damages expert from testifying at trial and to dismiss the complaint upon such preclusion.”

Print:
EmailTweetLikeLinkedIn
Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

 

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.