Timing of Expert Disclosure in Context of Summary Judgment Motions

During the first 40 years of the CPLR’s reign, it was hard to get excited about the procedural aspects of a motion for summary judgment. The device lived a comfortable and noncontroversial life housed within CPLR 3212, and was seemingly available for the asking in all sorts of cases.

Over the last decade, that has changed. The 1996 amendment to CPLR 3212(a) added an outer time limit on moving for summary judgment—a statute of limitations of sorts—and the provision was strictly construed by the Court of Appeals in Brill v. City of New York, 2 N.Y.3d 648 (2004). That led to calamity in numerous actions in which defendants, who moved for summary judgment even a few days late, were held to have forfeited the use of the device and were required to proceed to trial, regardless of the merits of their motion. See Group IX v. Next Printing & Design, 77 A.D.3d 530 (1st Dept. 2010). Plaintiffs who attempted to move for summary judgment via cross-motion were similarly denied use of the device when the cross-motion was deemed untimely under CPLR 3212(a) and sought relief entirely distinct from that sought on the defendant’s timely main motion. Filannino v. Triborough Bridge & Tunnel Auth., 34 A.D.3d 280 (1st Dept. 2006).

Expert Disclosure