Tate-Mitros v MTA N.Y. City Tr., 2016 NY Slip Op 07394 (1st Dept. 2016)
There seem to be a few attorneys who do not understand the minimal extent of disclosure and the timing issues behind CPLR 3101(d). This case is a prototypical example of when the parties convince a judge that 3101(d) is more demanding than that it is. The result of this argument seems to usually result in a new trial.
(1) “We find that Dr. Kurtz’s CPLR 3101(d)(1) disclosure notice was legally sufficient; it provided plaintiff with notice that the doctor would question whether a bus would have caused the injuries sustained by plaintiff. It is improper for a party to request the facts and opinions upon which another party’s expert is expected to testify (see Krygier v Airweld, Inc., 176 AD2d 700, 701 [2d Dept 1991]; see also Weininger v Hagedorn & Co., 203 AD2d 208, 209 [1st Dept 1994]; Conway v Elite Towing & Flatbedding Corp., 135 AD3d 893, 894 [2d Dept 2016] [“no requirement that (an) expert set forth the specific facts and opinions upon which he or she is expected to testify, . . . only the substance”]).”
(2) “However, a party should not be precluded from presenting expert testimony merely because of noncompliance with CPLR 3101(d)(1)(i), unless there is evidence of a willful failure to disclose and a showing of prejudice by the opposing party”
