In recent years, a question has been raisedprimarily in the Second Departmentas to whether expert affidavits submitted on summary judgment motions should be rejected if an expert disclosure under CPLR 3101(d) was not served prior to the filing of the note of issue. Several appellate decisions found that expert affidavits were properly disregarded under these circumstances, with some going further and finding it an abuse of discretion to consider them.
Although the issue initially arose in general negligence cases, litigants in medical malpractice actions have argued that expert affidavits submitted in support of, or opposition to, summary judgment could not be considered if there was no disclosure before the note of issue. Since the Second Department does not require pre-note of issue service of 3101(d) disclosures for experts to testify at trial, these decisions created something of an anomalyexperts who would be permitted to testify at trial could not submit affidavits on summary judgment motions. It also created a great deal of uncertainty for litigants in terms of the time requirements for serving expert disclosures.
