How can even the most favorable expert’s affidavit prove fatal to your client’s case? Of the several answers to this query, one is where the expert is located outside of New York, and the attorney fails to conform the expert’s affidavit. While not a complex issue to resolve, the failure to conform can snatch defeat from the jaws of victory.
Pitfall
Two hypothetical fact patterns illustrate this issue. In the first, a snowbird-plaintiff was involved in an automobile accident while visiting New York, which resulted in New York litigation. She spent the lion’s share of her year in Florida. At the request of her attorney, defense counsel agreed to plaintiff’s independent medical exam (IME) being conducted in Florida. Much to the chagrin of plaintiff’s attorney, however, the IME doctor issued the most “defense-friendly” report either attorney has ever seen. With no perceived weaknesses in the expert’s affidavit, defendant moved for summary judgment thinking that victory is just a foregone conclusion. Plaintiff’s counsel knew it too. Amazingly, when a decision was issued, defendant’s motion was denied.
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