Appellate Alert: Legislature Permits Using Opinions of Undisclosed Experts in Dispositive Motion Practice

by | Jan 5, 2016 | Appellate | 0 comments



Effective December 11, 2015, Rule 3212 of the New York Civil Procedure Law and Rules (“CPLR”) was amended to explicitly state that the parties are not required to exchange expert information in advance of dispositive motion practice.  The bill was proposed by the Office of Court Administration’s Advisory Committee on Civil Practice, of which the Head of MCB’s Appeals Department, Barbara D. Goldberg, is a member. The amendment ended years of debate as to whether the court may consider an affidavit of a previously unidentified expert submitted in support of or in opposition to a motion for summary judgment made after the filing of the note of issue.  It is effective immediately and applies to all summary judgment motions made on or after the day it became law.


CPLR § 3101(d) requires the parties to disclose certain information pertaining to the experts that they intend to call to testify at trial. The provision does not establish a timeline for this disclosure and does not discuss it in the context of motions for summary judgment, which are often made at the close of discovery.  Accordingly, litigants turned to the courts to determine whether the opinion of an expert who was not previously disclosed should be considered to obtain or defeat summary judgment.  The courts developed a number of approaches, generally agreeing that a finding of prejudice was required in order to warrant preclusion, and usually accepting the expert affirmations for consideration.


The CPLR amendment furthers New York State’s policy of resolving matters on their merits.  It also disposes of any confusion and eliminates the discrepancy between the courts’ varied interpretations of the requirements of CPLR § 3101(d) as applied to summary judgment motions.  On the other hand, it gives an advantage to the party opposing summary judgment, usually the plaintiff, who now has no incentive to disclose the substance of the intended testimony of his/her expert before assessing the contentions of the defendant’s expert.  This may allow plaintiffs’ attorneys to rest on the broad allegations made in the pleadings until the note of issue has been filed, and not divulge the precise focus of the case until after the defense is outlined in a summary judgment motion.  Nevertheless, all parties benefit by avoiding the costs and uncertainty associated with litigating the timeliness and admissibility of the expert opinion served in connection with the dispositive motion.