Consider the following: You have been litigating a case in New York State Supreme Court. You and your adversary have engaged in initial motion practice at the pleadings stage, suffered through discovery, spent far too many hours in meet-and-confers and sought court intervention on various contested issues. Now, with fact discovery complete, the parties agree that expert discovery is unnecessary. Thus, neither side makes an expert disclosure under CPLR 3101(d)(1)(i) by the court’s deadline, and no expert discovery occurs.

After the note of issue is filed, the parties proceed to make their respective summary judgment motions. But when you review your adversary’s papers, much to your chagrin, you discover that your adversary has submitted an expert affidavit opining on key issues. Naturally, you cry foul, declare that the expert submission is improper and accuse your adversary of bad faith gamesmanship. You reach out to the court, urging it to reject the expert testimony as out of turn. But to your dismay, the court accepts the submission, noting that it is bound by the CPLR to consider it even though the parties had opted not to make expert disclosures. How can this be?

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