In an exciting piece of news, Governor Cuomo has signed a bill to make it clear that the right to submit an expert affidavit in support of or in opposition to a summary judgment motion does not depend on whether or not the expert was disclosed before submitting the affidavit. This allows parties the same latitude in summary motions as at trial and standardizes practice across the state.
Although the CPLR does not require the exchange of expert information at
any particular time, some courts had required such an exchange as a condition
to the use of an expert affidavit to oppose summary judgment. In effect,
that allowed the moving party to unilaterally create a deadline for the
submission of experts without consulting the other side. In cases where
judges so ruled, expert affidavits used to oppose summary judgment were
expressly disregarded, leading to the dismissal of cases where otherwise
admissible expert proof, sufficient to create an issue of fact, was rejected
on an unsupported technicality in contravention of the open-ended timetable
for expert disclosure.
This legislation basically overrules a line of decisions in the First and Second Department that have allowed trial judges to use their discretion to decline to consider expert affidavits.
It will significantly reduce litigation costs on both sides. In addition, summary judgment motions will now be decided on their merits, without what is possibly the plaintiff or defendant’s strongest proof figuratively ending up in the court’s wastepaper basket.
While the bill was proposed by the Office of Court Administration, it was supported by NYSTLA as well as other legal groups.
Evan M. Goldberg
New York State Trial Lawyers Association