As happens from time to time, outlier Appellate Division decisions give rise to a new rule of law, which sometimes does not make sense.  The question of when a party has to disclose experts is unique in NY law.  Corresponding Federal practice has rigid discovery dates, preclusion if the expert is not disclosed, depositions of the experts, and a host of other rules.  NY practice is far more laissez faire on the entire question of experts.  There is no particular date by which the expert must be disclosed, there is no pre-trial deposition of an expert, no report is mandated, etc.

However, even in the face of CPLR 3101, the Appellate Division, first in the Second Department and then ocassionally elsewhere, suddenly determined that one may not use an expert on a motion for summary judgment unless that expert had been disclosed previously. Construction by Singletree, Inc. v Lowe  2008 NY Slip Op 08287 [55 AD3d 861]  October 28, 2008
Appellate Division, Second Department The doctrinal basis for the decision was, at best, cloudy.

“Contrary to Lowe’s contention, J.C. established its prima facie entitlement to judgment as a matter of law in connection with so much of Lowe’s second cross claim as was to recover compensatory for damages for breach of warranty by establishing that it did not breach any material term set forth in the contract between it and Lowe. In opposition to J.C.’s prima facie showing, Lowe failed to raise a triable issue of fact. The 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 issue and certificate of readiness attesting to the completion of discovery were filed in this matter (see Rodriguez v Sung Hi Kim, 42 AD3d 442, 442-443 [2007]; Wager v Hainline, 29 AD3d 569, 571 [2006]; Gralnik v Brighton Beach Assoc., 3 AD3d 518 [2004]; Concetto v Pedalino, 308 AD2d 470, 470-471 [2003]).

Our dissenting colleague disagrees with this holding, arguing that CPLR 3101 (d) (1) (i) applies only to an expert whom a party intends to call at trial, and ought not have precluded the trial court from considering previously undisclosed expert opinions submitted in opposition to a motion for summary judgment. We note, however, that the purpose of summary judgment is to determine whether there are genuine issues necessitating a trial. As such, “one opposing a motion for summary judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form” (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

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. That circumstance, coupled with Lowe’s failure to demonstrate how the facts set forth in the experts’ affidavits could otherwise be established at trial, justified the Supreme Court’s conclusion that Lowe failed to adequately establish the existence of a material issue of fact necessitating a trial in response to J.C.’s prima facie showing of entitlement to judgment as a matter of law. Accordingly, summary judgment dismissing so much of Lowe’s second cross claim as was to recover compensatory damages for breach of warranty was properly awarded to J.C. (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).”

Now, however, the Governor has signed a bill which specifies that disclosure is no longer a necessity in a summary judgment motion.  The bill, known as S5288/A6265 expressly overturns a line of cases which left to the judge’s discretion the question of whether such an expert’s affidavit was admissible and should be considered.

From the law:  “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.”