Within the context of discovery disputes, one of the most heavily litigated issues before New York's courts over the last several years has revolved around the bright-line test of when a party must be precluded from using an expert - whether at trial or in response to a summary judgment motion - based upon the lateness of disclosing that expert.
To that end, in an October 17 decision in Rivers v. Birnbaum, New York's Appellate Division, Second Department took the opportunity to clarify that there is, in fact, no bright-line test on this issue, stating as follows:
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.
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 ... 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.
"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."