Expert reports in summary judgment motions … in or out?

Recently, I had the opportunity to participate in an evidence program at the County Attorney’s Office which led to a lively (seriously!) discussion about the admissibility of expert reports submitted within summary judgment motions (CPLR§ 3212). Specifically, this discussion centered around several recent Second Department decisions which were striking expert reports submitted as part of summary judgment motions that had not been “noticed” pursuant to CPLR §3103(d)(1). In view of the fact that the notice requirement in CPLR§ 3101 (d)(1) specifically refers to admissibility at trial, this month’s column looks at those cases and the statutes involved.

The summary judgment section of the CPLR §3212(b) states in relevant part that the motion for summary judgment “…shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions.”(emphasis added). It does NOT say “admissible proof.” But in 1980, the Court of Appeals decided the case of Zuckerberg v. City of New York, 49 N.Y.2d 557. In that case, the plaintiff sued the NYCTA and others when she fell at a curb near a bus stop. The TA moved for summary judgment arguing that the only theory of liability against them was their failure to maintain the curb and that they had no such responsibility. The plaintiff opposed the motion, but the only submission in the papers was an attorney’s affirmation laying out the plaintiff’s theory of negligence of the TA. The Court of Appeals held that where the moving party has demonstrated its entitlement to summary judgment, the opposing party must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for failing to do so.

CPLR §3101(d) states that upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose – I am paraphrasing here – the substance of the facts and opinions of the expert, their qualifications, and the basis for the expert’s opinion. If, for good cause shown, a party retains an expert an insufficient period of time before the commencement of trial to give appropriate notice, the party is not precluded but rather must seek an order of the court allowing it to do so. It is important to note that the statute itself recognizes that a party may retain an expert up to the commencement of trial and is not automatically precluded from noticing the expert at that time. So far, fairly simple, right?

However, the case of Construction by Singletree, Inc. v. Lowe, 55 AD3d 861866, 2008 WL 4743499 involved summary judgment cross claims by a sub-contractor against the general contractor for work the plaintiff had done during the construction of a home for the defendant. In the motion practice below, the Supreme Court declined to consider the expert affidavits offered by Lowe – one of the co defendants because it had failed to identify the experts in pretrial disclosure and had served the affidavits after the note of issue and had certified the case for trial. The dissent argued that this was an improvident exercise of discretion because CPLR §3101(d) applied only to an expert whom a party intends to call at trial and should not be determinative in a motion for summary judgment. The majority, however, addressed the issue by stating that because of the failure to notice the expert prior to the case being certified, the expert’s testimony would not be admissible at trial and therefore did violate CPLR §3212, citing Zuckerberg! In addition to the fact that this ruling significantly expands the Zuckerberg requirement it also seems to ignore the fact that the CPLR§3101(d)(1) prohibition is not absolute. A party can serve reports with court permission literally up until the trial. In effect, the Appellate Division has determined the evidence issue of the report’s admissibility in the context of the summary judgment motion. It seems that a less draconian remedy would be to allow the expert report to be served and then grant the other side an adjournment to obtain their own opposing expert. This practice seems to have been anticipated by the legislature or else why would they allow courts to grant service or reports at the time of trial for good cause shown?

In the March 24, 2009 the Appellate Division decided the case of Howard v. Kennedy, 875 N.Y.S.2d 271. In Howard, the plaintiffs brought a medical malpractice action for treatment of the decedent in Supreme Court, Orange County. The defendants moved for summary judgment dismissing the complaint. The defendants had submitted the affidavit of an expert who gave the opinion that the defendants did not deviate from accepted medical standards in their care of the decedent. In opposition, the plaintiffs submitted the affidavit of an expert and trial term held that a triable issue of fact had been raised. Here, the appellants also argued that the plaintiff had not complied with the notice requirements of CPLR §3101(d) and that the court should not have considered the affidavit of their expert. However, the Supreme Court found that there was a “factual dispute” about whether or not plaintiffs had complied and so within its discretion the court allowed the affidavit. But again, it is clear that the notice requirement and it’s applicability to summary judgment has gained traction. Further proof of this conclusion is found in a case decided last month. In Vailes v. Nassau County Police Activity League, Inc. 2010 NY Slip Op 03112, the Supreme Court declined to consider the affidavit of the plaintiff’s expert because the expert was not identified by the plaintiff’s until after the note of issue and certificate of readiness had been filed attesting to the completion of discovery. The Appellate Division affirmed the court’s ruling on the expert affidavit as being a valid exercise of discretion although reversed on other grounds.

Besides there being some question about the statutory interpretation as discussed above, there are also some practical issues being raised. Frank Torres, Esq., of Duffy & Duffy, has practiced on both sides of medical malpractice law and was the attorney who represented Dr. Sasson in the Etminan when he was at his prior firm, Levine & Shapiro. The problem with the current trend, as he pointed out in conversation with me, is that it does not recognize the manner in which these cases are prepared for trial. While he agrees that both plaintiffs and defendants in these types of cases consult with experts early on in the process of both evaluating a case and completing discovery, he points out d that rarely these experts are the experts who will be called to testify at trial. Even after depositions are completed and the case is certified as trial ready, the case is often months if not years from being tried.

Christopher McGrath, former Nassau County Bar Association President who also practices in this field, recognizes the disharmony between the two statutes. He suggested that the most appropriate resolution would be for the legislature to set a specific time when such reports had to be filed ,say for example, within 60 days of the filing of the note of issue.

Whatever the outcome practitioners should be aware of the evolving rule here-when in doubt, serve the notice! See you next column.

Arthur M. Diamond is a Supreme Court Justice in Mineola. He welcomes evidence questions & comments and can be reached at