Expert disclosure timing is a controversial issue in New York practice. There is no universal ruling regarding whether expert disclosure, governed by CPLR §3101(d), must be made before the Note of Issue and Certificate of Readiness have been filed. There is no rule that requires expert disclosure to be exchanged a certain period of time before trial. Both the First and Second Departments have addressed this issue and have held that courts can use their discretion to decide if the expert disclosure was done timely and if it will be precluded at trial.

Background

Generally, when a party files a Note of Issue and Certificate of Readiness, the party affirms that all the discovery proceedings have been completed. However, the wording of CPLR §3101(d) does not call for disclosure of experts to be done before a note of issue has been filed.

CPLR §3101(d) provides that each party must identify the experts to be called at trial and must disclose in reasonable detail the subject matter on which the expert is to testify.¹ The statute also provides that when a party shows good cause for retaining an expert an insufficient time before the trial, that party may be allowed to introduce the expert's testimony.

The Second Department has held that where “one party requests trial expert disclosure during discovery pursuant to CPLR 3101(d)(1)(i), a recipient party who does not respond to the request until after the filing of the Note of Issue and Certificate of Readiness will not automatically be subject to preclusion of its expert's trial testimony.”²

History: Key Cases

The Second Department ruled in the 2008 case of Construction by Singletree v. Lowe that a trial court can preclude an expert's affidavit when it is offered in opposition to a summary judgment motion where the expert was not disclosed prior to the filing of the note of issue.³