Why Trust This Analysis
This article is part of our ongoing experts coverage, with 82 published articles analyzing experts 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.
Expert witness disclosure under CPLR 3101(d) requires attorneys to provide timely notice when they intend to call an expert at trial. The timing of this disclosure is crucial — courts expect attorneys to reveal their expert witnesses as soon as they know they will use them, not at the last possible moment. When attorneys engage in strategic delay or “gamesmanship” with expert disclosures, they risk having their expert testimony precluded entirely, which can devastate their case.
The Fourth Department’s decision in Flowers v Harborcenter Dev., LLC provides a clear example of how courts respond to willful violations of expert disclosure requirements. This case demonstrates that even when the opposing party has some awareness that an expert might be called, strategic delays in disclosure can still result in preclusion if the court finds the delay was purposeful and caused prejudice.
Jason Tenenbaum’s Analysis:
Flowers v Harborcenter Dev., LLC, 2019 NY Slip Op 00749 (4th Dept, 2019)
“Here, the court determined that there was a willful failure to disclose because, prior to jury selection, defendants’ attorneys knew that they intended to present testimony from the psychiatric expert, but they did not disclose the expert until the day after jury selection began, which violated the court’s directive that defendants disclose an expert as soon as they knew of said expert. Although the record establishes that plaintiff was aware of the possibility that defendants would call an expert psychiatrist, he was prejudiced by the tardiness of the disclosure both because it impaired his ability to discuss the relevant issues during jury selection and because it hamstrung his opportunity to retain an expert psychiatrist of his own. Thus, based on the evidence in the record supporting the court’s determination that defendants had engaged in purposeful gamesmanship by withholding the information, and the resulting prejudice to plaintiff, we conclude that the court did not abuse its discretion in precluding the proposed expert testimony.”
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Key Takeaway
Courts will not tolerate strategic gamesmanship with expert witness disclosures. Even when opposing counsel has general awareness that an expert might be called, willful delay in formal disclosure can result in preclusion of expert testimony if it prejudices the other party’s ability to prepare their case or conduct jury selection effectively.
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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 2,600 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
Expert Testimony in New York Litigation
Expert testimony is essential in most personal injury and no-fault cases — from medical experts establishing causation and damages to accident reconstructionists and economic experts calculating lost earnings. New York courts apply specific rules governing expert qualifications, the foundation for expert opinions, the use of medical journals and treatises, and the sufficiency of expert evidence on summary judgment. These articles analyze the legal standards for expert testimony and practical strategies for presenting and challenging expert evidence.
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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.
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