We spent our last entry talking about when a trial court faced with a motion for summary judgement can consider an affidavit from an expert even though the expert was not disclosed until after the Note of Issue and Certificate of Readiness were filed. The answer, more often than not, at least in the Appellate Division, Second Department in New York: When the expert makes a difference by establishing the existence of a material issue of triable fact. See Rivers v. Birnbaum, 102 A.D.3d 26, 953 N.Y.S.2d 232 (2nd Dept. 2012), and Begley v. City of New York, 111 A.D.3d 5, 972 N.Y.S.2d 48, 72 (2nd Dept. 2013), leave to appeal denied, 23 N.Y.3d 903, 988 N.Y.S.2d 130 (2014).
Rivers v. Birnbaum, supra, and Begley v. City of New York, supra, were not the actual sea changes they might appear to be at first. Though important decisions, the rule they enunciated was applied in many cases before they were decided and the ones in which it was not applied were the exceptions that proved the rule.
King v. Gregruss Mgmt. Corp., 57 A.D.3d 851, 852-53, 870 N.Y.S.2d 103 (2nd Dept. 2008), was a personal injury action in which the plaintiff was injured when he tried to cut open a steel drum containing windshield washer fluid with an electric saw. The Second Department held that the trial court should not have considered the affidavit from the plaintiff’s expert in opposition to the defendants’ various motions for summary judgement and should have precluded the expert from testifying at any stage of the proceedings.
The expert in King v. Gregruss Mgmt. Corp., supra, undoubtedly would have made a difference. It just appears that there was no way to verify the facts on which his opinion was based and his testimony actually was more about basic, critical, and unverifiable facts, than scientific opinion. All told, the case is a fine example of a plan too smart by half, and illustrative of the type of behavior that more often than not will be penalized, if for no other reason than it should be. It is that behavior, more than the simple late disclosure of the expert, which prevented the expert’s affidavit from being considered:
- The plaintiff was going to use the expert to establish key facts, not just opinion: that the defendants either manufactured or reconditioned the drum that exploded and the windshield washer fluid that was in the drum at the time. That is, the plaintiff needed the expert to link the defendants to the drum that caused plaintiff’s injuries. This was based on the markings on the drum; the expert would testify what those markings were and why they meant the drum was manufactured or reconditioned by defendants. It was not just that the expert was to testify that what the defendants did was wrong; without the expert plaintiff could not even show that the defendants were even involved.
- The plaintiff apparently hid this fact for at least the ten years during which litigation proceeded, disclosing the expert only when faced with the motions for summary judgement.
- During the time plaintiff failed to disclose the witness it was going to rely on to conclusively establish the identities of the parties responsible for the drum and its contents, i.e., the expert, it also got rid of the drum. The defendants, therefore, were severely prejudiced: Even if they were given additional time to retain their own experts to refute the findings of plaintiff’s expert, there was nothing for their experts to inspect because the drum was long gone.
Kopeloff v. Arctic Cat, Inc., 84 A.D.3d 890, 891, 923 N.Y.S.2d 168, 170 (2nd Dept. 2011), holds that the trial court did not abuse its discretion in refusing to consider plaintiff’s expert’s affidavit in opposition to defendant’s motion for summary judgement. More important than merely being late, the plaintiff’s expert’s affidavit also, according to the Second Department, would not have made a difference because it would not have raised a triable issue of fact:
In any event, even if the affidavit of the plaintiff’s expert could have properly been considered, the result would not have been different, inasmuch as the Supreme Court correctly concluded that it was speculative, conclusory, and partially based on evidence which is not in the record (see Micciola v. Sacchi, 36 A.D.3d 869, 871, 828 N.Y.S.2d 572; Guarino v. La Shellda Maintenance Corp., 252 A.D.2d 514, 515, 675 N.Y.S.2d 374; see also Wartski v. C.W. Post Campus of Long Is. Univ., 63 A.D.3d 916, 917, 882 N.Y.S.2d 192).
In Pellechia v. Partner Aviation Enterprises, Inc., 80 A.D.3d 740, 741, 916 N.Y.S.2d 130, 132 (2nd Dept. 2011), the appellate court upheld the lower court’s refusal to consider an affidavit from an expert who was not disclosed prior to the filing of the note of issue. The expert’s affidavit, however, even if considered, would not have made a difference to the ultimate decision on the motion for summary judgement:
Further, the expert failed to demonstrate that he was qualified to render an opinion (Hofmann v. Toys “R” Us, N.Y. Ltd. Partnership, 272 A.D.2d 296, 707 N.Y.S.2d 641). Moreover, the expert’s opinion which was speculative and conclusory, and was not based on accepted industry standards, was insufficient to raise a triable issue of fact (see Rabon-Willimack v. Robert Mondavi Corp., 73 A.D.3d 1007, 1009, 905 N.Y.S.2d 190; Pappas v. Cherry Cr., Inc., 66 A.D.3d 658, 888 N.Y.S.2d 511; Rivas-Chirino v. Wildlife Conservation Socy., 64 A.D.3d 556, 883 N.Y.S.2d 552).
In Gerardi v. Verizon New York, Inc., 66 A.D.3d 960, 961, 888 N.Y.S.2d 136, 137-38 (2nd Dept. 2009), and in Wartski v. C.W. Post Campus of Long Island Univ., 63 A.D.3d 916, 917-18, 882 N.Y.S.2d 192 (2nd Dept. 2009), the Second Department held that the plaintiff’s expert’s affidavit should not have been considered because the expert was not disclosed until after the note of issue was filed. More importantly, though, was the fact that the Second Department went out of its way, in each case, to point out that the expert’s affidavit would not have raised a triable issue of fact even if it had been considered.
This small, but illustrative, sampling of the relevant case law in the Second Department shows again that the more things change, the more they stay the same. A close reading, with a critical eye, often is worth the effort. Even if you are not always right, at least you will never fail to learn something along the way.
Go raibh maith agat.