Why Trust This Analysis
This article is part of our ongoing evidence coverage, with 161 published articles analyzing evidence issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
Court Rejects Attorney-Drafted Expert Disclosure in Medical Malpractice Case
Medical malpractice cases often hinge on expert testimony to establish the standard of care and causation. However, not all expert submissions carry equal weight in court. A recent First Department decision demonstrates the importance of proper evidentiary foundation when opposing summary judgment motions, particularly regarding expert disclosures under CPLR 3101(d).
The case highlights a persistent issue in litigation: attorneys drafting expert affidavits or disclosures that lack the authentic voice and analysis of the medical professional who supposedly authored them. Courts have grown increasingly skeptical of these “cookie-cutter” submissions, though they don’t always reject them outright.
This decision provides valuable insight into how courts evaluate expert testimony foundations and what constitutes sufficient evidentiary proof to survive summary judgment in malpractice actions.
Jason Tenenbaum’s Analysis:
Free Consultation · No Fee Unless We Win
Does this apply to your situation?
Every case is different. Get a free, confidential case review from an experienced attorney who can tell you exactly where you stand.
Bacani v Rosenberg, 2014 NY Slip Op 00737 (1st Dept. 2014)
“As this Court previously found, the opinions of plaintiffs’ expert, Dr. Harrigan, failed to raise a triable issue, and plaintiffs’ submission of an attorney-drafted CPLR 3101(d) expert disclosure averring that an expert pathologist would testify concerning causation is not evidentiary proof in admissible form sufficient to defeat the subject motion for summary judgment (see e.g. Velasco v Green-Wood Cemetery, 48 AD3d 271, 272 ).”
It is nice to see the court call out the “attorney drafted” affidavit of merit. You know it when you see it, and the courts know it also. Yet, they often allow these “documents” to be considered to defeat a summary judgment motion. While this case will not be the death knell or the watershed moment for documents that doctor’s should not be signing, this is a nice case to see.
Key Takeaway
The First Department’s explicit rejection of an “attorney-drafted” expert disclosure sends a clear message about the need for authentic expert submissions. While courts often overlook obviously ghostwritten expert affidavits, this decision shows growing judicial scrutiny of such practices and reinforces that proper evidentiary foundation requires genuine expert analysis, not legal boilerplate.
Related Articles
- CPLR 3101: Disclosure Requirements (Complete Guide)
- Understanding foundation requirements for expert testimony in medical malpractice cases
- Expert competency standards and medical literature requirements
- Expert witness qualifications for medical subspecialty testimony
- Evidentiary issues with expert witness testimony and hearsay rules
- New York No-Fault Insurance Law
Legal Update (February 2026): Since this 2014 decision, New York courts have continued to refine standards for expert testimony in medical malpractice cases, and CPLR 3101(d) disclosure requirements may have been subject to procedural amendments or judicial interpretation changes. Practitioners should verify current provisions regarding expert witness disclosure standards and evidentiary requirements, as both statutory requirements and case law precedents governing attorney-drafted expert submissions have likely evolved over the past decade.
Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Evidentiary Issues in New York Litigation
The rules of evidence determine what information a court or arbitrator may consider in deciding a case. In New York no-fault and personal injury practice, evidentiary issues arise constantly — from the admissibility of business records and medical reports to the foundation requirements for expert testimony and the application of hearsay exceptions. These articles examine how New York courts apply evidentiary rules in insurance and injury litigation, with practical guidance for building admissible evidence at every stage of a case.
161 published articles in Evidence
Keep Reading
More Evidence Analysis
CPLR § 2106 Amendment Eliminates Affidavit Notarization Requirement: What This Means for New York Litigation
New York's CPLR 2106 permits affirmations in place of many sworn documents. See the 2024 and 2025 changes, exceptions, and historical case notes.
Feb 18, 2026
Expert Witness in Car Accident Lawsuits
Learn how expert witnesses in New York car accident lawsuits help establish fault, causation, and damages through accident reconstruction, medical testimony, and economic analysis.
May 14, 2025
Attacking an expert based upon his religion leads to reversal
Court of Appeals reverses civil commitment case where prosecutor attacked expert witness based on religious beliefs during cross-examination, violating fair trial standards.
Apr 6, 2011
Physical Therapist Expert Testimony Limitations in New York Personal Injury Cases
New York courts limit physical therapist testimony in personal injury cases — they cannot diagnose, make prognoses, or determine permanency.
Feb 6, 2010
Out of scope – need foundation
New York medical malpractice case highlights the critical requirement for expert witnesses to establish proper foundation when testifying outside their area of specialization.
Jan 19, 2018
The Missing Document Charge in New York: Proving the Document Existed Before Seeking an Adverse Inference
When New York courts grant a missing document charge: the party must prove the documents existed and moved to compel production during discovery.
Nov 16, 2014Was this article helpful?
Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
If you need legal help with a evidence matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
