Key Takeaway
Court strikes expert affidavit when plaintiff failed to identify expert during discovery phase, emphasizing importance of timely disclosure under CPLR 3101(d).
Expert Disclosure Deadlines: A Costly Mistake in Discovery
New York’s Civil Practice Law and Rules require parties to identify expert witnesses during the discovery phase of litigation. CPLR 3101(d) specifically mandates that expert information be disclosed in response to proper discovery demands. When attorneys miss these deadlines, the consequences can be severe — as demonstrated in a recent Second Department decision that excluded a plaintiff’s expert entirely.
The timing of expert disclosure becomes particularly critical when parties file their note of issue and certificate of readiness, which signals to the court that discovery is complete. Once this milestone is reached, introducing new experts becomes significantly more difficult without compelling justification.
Jason Tenenbaum’s Analysis:
Lombardi v Alpine Overhead Doors, Inc., 2012 NY Slip Op 01590 (2d Dept. 2012)
“In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff’s contention, the Supreme Court properly declined to consider his expert affidavit submitted in opposition to the defendant’s motion. The expert was not identified by the plaintiff until after the note of issue and certificate of readiness were filed attesting to the completion of discovery, and the plaintiff did not provide any excuse for failing to identify the expert in response to the defendant’s discovery demands (see CPLR 3101; Kopeloff v Arctic Cat, Inc., 84 AD3d 890, 890-891; Ehrenberg v Starbucks Coffee Co., 82 AD3d 829, 830-831; Gerardi v Verizon N.Y., Inc., 66 AD3d 960, 961).”
Key Takeaway
Courts will not consider expert affidavits when the expert was not properly disclosed during discovery, especially after the note of issue is filed. The plaintiff’s failure to provide any excuse for the delayed disclosure proved fatal to their opposition to summary judgment. This case underscores the importance of timely compliance with discovery obligations under CPLR 3101(d).
Legal Update (February 2026): Since this 2012 post, New York’s discovery rules under CPLR Article 31 have undergone various amendments, including modifications to expert disclosure requirements and timelines. Additionally, appellate decisions may have further clarified or modified the standards for expert exclusion and post-note of issue expert identification. Practitioners should verify current CPLR provisions and recent case law regarding expert disclosure deadlines and sanctions.
