Late Expert: CPLR 3101(d)

CPLR § 3101(d) Trial Preparation (2) Materials

Campos v Beth Israel Med. Ctr., 2011 NY Slip Op 00344 (App. Div., 2nd 2011) 

The expert witness disclosure required by CPLR 3101(d) was served by the plaintiff 6½ years after the incidents complained of, 4 years after the action was commenced, almost 4 years after the original bill of particulars was served, and 1½ years after the amended bill of particulars was served. The expert witness disclosure contained new theories of liability which were not readily discernable from the allegations set forth in the bills of particulars. Accordingly, under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying the defendants' motion to preclude the plaintiff's expert and any other witnesses called by the plaintiff from testifying concerning certain unpleaded allegations relating to the defendants' alleged malpractice in, inter alia, leaving the patient, Hilda Campos, unattended, leaving the bed rails of her bed down, and allowing her to fall out of her hospital bed onto the floor (see Navarette v Alexiades, 50 AD3d 869, 870;Navarette v Alexiades, 50 AD3d 872, 872; Durant v Shuren, 33 AD3d 843, 844). 

Expert must assist and be qualified

Green v Silver, 2010 NY Slip Op 09887 (App. Div., 2nd 2010)

The Supreme Court providently exercised its discretion in precluding the defendant's expert from testifying at the hearing, since the matter about which he would have testified would not have assisted the court in making its determination (see generally Kulak v Nationwide Mut. Ins. Co., 40 NY2d 140).

Riccio v NHT Owners, LLC, 2010 NY Slip Op 09492 (App. Div., 2nd 2010)

"It is within the Supreme Court's sound discretion to determine whether a particular witness is qualified to testify as an expert, and its determination will not be disturbed in the absence of serious mistake, an error of law, or an improvident exercise of discretion" (de Hernandez v Lutheran Med. Ctr., 46 AD3d 517, 517-518; see Werner v Sun Oil Co., 65 NY2d 839; Meiselman v Crown Hgts. Hosp., 285 NY 389, 398; Steinbuch v Stern, 2 AD3d 709, 710; Pignataro v Galarzia, 303 AD2d 667; McLamb v Metropolitan Suburban Bus Auth., 139 AD2d 572). "An expert is qualified to proffer an opinion if he or she possesses the requisite skill, training, education, knowledge, or experience to render a reliable opinion" (de Hernandez v Lutheran Med. Ctr., 46 AD3d at 518; see Matott v Ward, 48 NY2d 455, 459;Pignataro v Galarzia, 303 AD2d at 668; Hofmann v Toys R Us, NY Ltd. Partnership, 272 AD2d 296). "The competence of an expert in a particular subject may derive from long observation and real world experience, and is not dependent upon formal training or attainment of an academic degree in the subject" (Miele v American Tobacco Co., 2 AD3d 799, 802; see Caprara v Chrysler Corp., 52 NY2d 114, 121;McLamb v Metropolitan Suburban Bus Auth., 139 AD2d at 573).

Here, the plaintiff's expert demonstrated that she possessed the requisite skill, training, education, knowledge, and experience to render a reliable opinion as to whether the ladder provided to the plaintiff was appropriate for the repair he was performing (see Caprara v Chrysler Corp., 52 NY2d at 121; Brown v Concord Nurseries, 53 AD3d 1067, 1068; Miele v American Tobacco Co., 2 AD3d at 802). The defendants' objections to the expert's qualifications should not have precluded the admission of her testimony, but rather, went to the weight to be accorded to it by a jury (see Ochoa v Jacobson Div. of Textron, Inc., 16 AD3d 393Miele v American Tobacco Co., 2 AD3d at 802;McLamb v Metropolitan Suburban Bus Auth., 139 AD2d at 573). Accordingly, the Supreme Court improvidently exercised its discretion in, in effect, granting the defendants' application to preclude the testimony of the plaintiff's expert on the ground that she was not qualified to testify. Under the circumstances of this case, a new trial is warranted. 

Leffler v Feld, 2010 NY Slip Op 09073 (App. Div., 1st 2010)

The court properly refused to permit plaintiff to call a previously undisclosed coworker as a rebuttal witness, as the witness could have been called on plaintiff's direct case (cf. Feldsberg v Nitschke, 49 NY2d 636, 643 [1980]; see Hutchinson v Shaheen, 55 AD2d 833, 834 [1976]). Moreover, since the rebuttal witness would not have testified to what plaintiff told defendant about her symptoms, no substantial right was prejudiced by the preclusion of the witness's testimony (see Frias v Fanning, 119 AD2d 796, 797 [1986]).

Finally, the testimony of plaintiff's handwriting expert was properly precluded because it "was of questionable probative value and likely to involve distracting collateral issues" (Heraud v Weissman, 276 AD2d 376, 377 [2000], lv denied, 96 NY2d 705 [2001]). The pre-deliberations substitution of an alternate juror for a juror who was late and could not be contacted was also a proper exercise of discretion (see People v Jeanty, 94 NY2d 507, 517 [2000]; People v Ballard, 51 AD3d 1034, 1035-1036 [2008], lv denied 11 NY3d 734 [2008]).


Bygrave v New York City Hous. Auth., 2009 NY Slip Op 06361 (App. Div., 1st, 2009)

This decision is too long to pull a cut and paste job.  Long story short, defendant moved for summary judgment based on the affidavit of its expert.  The expert referred to a few reports, but not all of them were attached; however this did not bother the Court.  The Court rejected the testimony of the expert because it was not based upon "an individualized assessment of plaintiff's particular condition."  Click on the case to read more.  It's a lead paint case.

Before you go, take note:

Because defendant failed to meet its initial burden of establishing
entitlement to judgment in its favor as a matter of law, the motion
court should have denied the motion for summary [*5]judgment without even considering the sufficiency of plaintiff's opposition papers (see Winegrad, 64 NY2d at 853).

Expert testimony, even if unrebutted will not always carry the day.  Although, to be clear, the Court did find that had defendant met its burden, plaintiff opposition was sufficient to raise an issue of fact.

Lately the First Department has had a dissent in almost every decision.  This one was no exception.

Experts, Qualificaton, Evidence, and Hearsay

County of Nassau v Fuentes, 2009 NY Slip Op 05843 (App. Div., 2nd, 2009)

In support of his motion for summary judgment dismissing the complaint,
the defendant made a prima facie showing of entitlement to judgment as
a matter of law by submitting an affidavit in which he denied receiving
notice, prior to the commencement of this action, that his vehicle
might be subject to a forfeiture action (see Nassau County Administrative Code § 8-7.0[g][4][a]; County of Nassau v Bassen, 14 Misc 3d 633; see generally Alvarez v Prospect Hosp.,
68 NY2d 320). However, in opposition to that showing, the plaintiff,
County of Nassau, raised a triable issue of fact by producing copies of
a "Vehicle Seizure Notice," purportedly signed by the defendant at the
time of his arrest for the underlying offense, and a return receipt
card, also purportedly signed by the defendant, acknowledging receipt
of a letter the County allegedly sent to him prior to the commencement
of this action. Both documents advised that the subject vehicle might
be the subject of a forfeiture action. While we conclude that the
County's showing was sufficient to raise an issue of fact warranting
denial of the defendant's motion, contrary to the County's contention,
it did not warrant the granting of that branch of its cross motion
which was for summary judgment on the complaint, as the genuineness of
the defendant's purported signatures on the documents described above
presents an issue of fact
(see Seoulbank, N.Y. Agency v D & J Import & Export Corp., 270 AD2d 193, 194; Dyckman v Barrett, 187 AD2d 553, 555).

Saunders v 551 Galaxy Realty Corp., 2009 NY Slip Op 05763 (App. Div., 2nd, 2009)

The defendants failed to submit sufficient evidence in admissible form
to make a prima facie showing of entitlement to judgment as a matter of
law. The defendants offered no evidence, other than inadmissible
hearsay, as to why the air conditioner fell from the window. The
defendants failed to show that they were not negligent in their initial
inspection of the air conditioner's installation.
No evidence was
provided as to the defendants' general policy on inspecting and
maintaining air conditioning units installed on the premises, and the
defendants failed to show that, as the owners of the property, they
relinquished exclusive control of the apartment and the window from
which the air conditioner fell, to a tenant who had no lease, thus
absolving them of liability (see Spanbock v Fifty Fourth St. Condominium, 3
AD3d 395). Accordingly, the Supreme Court properly denied the
defendants' motion for summary judgment dismissing the complaint
without considering the sufficiency of the plaintiff's opposition
(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Schechter v 3320 Holding LLC, 2009 NY Slip Op 05684 (App. Div., 1st, 2009)

For a witness to be qualified as an expert, the witness must possess
the requisite skill, training, education, knowledge or experience from
which it can be assumed that the opinion rendered is reliable
(Matott v Ward,
48 NY2d 455, 459 [1979]). Here, Santiago had no formal training or
education, and does not possess any certification or license, with
respect to elevator maintenance or repair. He was not, however,
precluded from being qualified as an expert for lack of formal training
and education; he could have been qualified if through "long
observation and actual experience"
(Price v New York City Hous. Auth.,
92 NY2d 553, 559 [1998] [internal quotation marks and brackets
omitted]) he possessed sufficient skill, knowledge and experience in
elevator maintenance and repair to support an assumption that his
opinion regarding the cause of the interlock's failure was reliable.
But Imperial Elevator failed to submit evidence demonstrating that
Santiago possessed such skill, knowledge and experience
(see Rosen v Tanning Loft, 16 AD3d 480 [2005], citing, among other cases, Hofmann v Toys "R" Us, NY Ltd. Partnership, 272 AD2d 296 [2000]; see also Hellert v Town of Hamburg, 50 AD3d 1481 [2008], lv denied
11 NY3d 702 [2008]). No evidence was submitted demonstrating what
on-the-job training Santiago received from the coworker at his prior
employer; Santiago's duties as a "maintenance man" — "check[ing] for
oil, check[ing] [and cleaning] the [inter]locks," "cleaning the motor
room, cleaning the top of the ca[b], [and] cleaning the pit [beneath
the elevator]" — do not suggest that he can render a reliable opinion
regarding the cause of the failure of the interlock; and Santiago's
deposition testimony does not demonstrate that he is familiar with the
laws, rules, regulations, and accepted customs and practices in the
field of elevator maintenance and repair
(cf. Efstathiou v Cuzco, LLC, 51 AD3d 712
[2008]). Because Imperial Elevator failed to demonstrate that Santiago
is qualified to render a reliable opinion regarding the cause of the
failure of the interlock, it failed to raise a triable issue of fact
with respect to the issue of its negligence.

Continue reading “Experts, Qualificaton, Evidence, and Hearsay”

Experts and Their Reports. And a Engineer’s Report that Made its Way into Evidence

Starting last first, here we go.

McPartlan v Basile, 2009 NY Slip Op 05521 (App. Div., 2nd, 2009)

Contrary to the appellants' contention, the engineer's report was
admitted into evidence, and properly so, not to prove the truth or
accuracy of its contents, but to establish that the plaintiffs had a
good faith basis for determining that the report was unacceptable.
Furthermore, the record supports the conclusion that the plaintiffs
did, in fact, act in good faith, and thus their termination of the
contract of sale pursuant to Paragraph 39 of the contract was valid (see Hirsch v Food Resources, Inc., 24 AD3d 293, 296; Tradewinds Fin. Corp. v Refco Sec., 5 AD3d 229, 230-31; Richbell Info. Sers. v Jupiter Partners,
309 AD2d 288, 302). Accordingly, the Supreme Court properly determined
that the plaintiffs were entitled to the return of their down payment.

Yun v Barber, 2009 NY Slip Op 05535 (App. Div., 2nd, 2009)

The plaintiffs' remaining submissions did not constitute admissible evidence since they were unsworn (see Grasso v Angerami, 79 NY2d 813; McNeil v New York City Tr. Auth., 60 AD3d 1018; Sapienza v Ruggiero, 57 AD3d 643, 644).

Vickers v Francis, 2009 NY Slip Op 05540 (App. Div., 2nd, 2009)

Initially, the X ray report dated September 22, 2006, the magnetic
resonance imaging (hereinafter MRI) reports of Dr. Robert Diamond, the
medical records from Alliance Medical Office, the plaintiff's emergency
room and hospital records, and the reports of Dr. Nunzio Saulle dated
August 31, 2006, and October 19, 2006, were not in admissible form
because they were unsworn
(see Grasso v Angerami, 79 NY2d 813, 814-815; McNeil v New York City Tr. Auth., 60 AD3d 1018; Sapienza v Ruggiero, 57 AD3d 643, 644; Uribe-Zapata v Capallan, 54 AD3d 936, 937; Choi Ping Wong v Innocent, 54 AD3d 384, 385).

The affirmed medical reports of Dr. Saulle were insufficient to
raise a triable issue of fact as to whether the plaintiff sustained a
serious injury to her cervical or lumbar spine as a result of the
subject accident. Neither the plaintiff nor Dr. Saulle proffered
competent objective medical evidence revealing the existence of a
significant limitation in either region of the plaintiff's spine that [*2]was contemporaneous with the subject accident (see Leeber v Ward, 55 AD3d 563; Ferraro v Ridge Car Serv., 49 AD3d 498; D'Onofrio v Floton, Inc., 45
AD3d 525). Furthermore, in reaching his conclusion in his affirmed
medical reports, Dr. Saulle clearly relied on the unsworn MRI reports
of Dr. Diamond
(see Magid v Lincoln Servs. Corp., 60 AD3d 1008; Sorto v Morales, 55 AD3d 718; Malave v Basikov, 45 AD3d 539; Verette v Zia, 44 AD3d 747; Furrs v Griffith, 43 AD3d 389; see also Friedman v U-Haul Truck Rental, 216
AD2d 266, 267). Moreover, Dr. Saulle failed to address, in any of his
affirmed reports, the fact that the plaintiff injured her neck and back
in a subsequent accident in October 2007. His failure to address that
accident and the resulting injuries rendered speculative his
conclusions that the range of motion limitations he noted in the
plaintiff's cervical and lumbar regions after October 2007 were caused
by the subject accident (see Donadio v Doukhnych, 55 AD3d 532; Seck v Minigreen Hacking Corp., 53 AD3d 608).

Wartski v C.W. Post Campus of Long Is. Univ., 2009 NY Slip Op 05115 (App. Div., 2nd, 2009)

In opposition, the plaintiff failed to raise a triable issue of fact
as to whether the defendant had actual notice of a recurring dangerous
condition such that it could be charged with constructive notice of
each specific recurrence of that condition (see Erikson v J.I.B. Realty Corp., 12 AD3d 344, 346; Weisenthal v Pickman,
153 AD2d 849, 851). Here, at most, the evidence submitted by the
plaintiff established that the defendant had only a general awareness
that the stairs became wet when ice and snow was tracked into the
building, which was insufficient to establish constructive notice of
the particular condition which caused the plaintiff to fall (see Arrufat v City of New York, 45 AD3d 710; Curtis v Dayton Beach Park No. 1 Corp., 23 AD3d 511; Gonzalez v Jenel Mgt. Corp., 11 AD3d 656; Andujar v Benenson Inv. Co., 299 AD2d at 504; Yearwood v Cushman & Wakefield, Inc., 294 AD2d 568, 569).

The plaintiff's expert affidavit should not have been considered
in determining the motion since the expert was not identified by the
plaintiff until after the note of issue and certificate of readiness
were filed attesting to the completion of discovery, and the plaintiff
offered no valid excuse for her delay [*2]in identifying the expert (see CPLR 3101[d][1]
; Construction by Singletree, Inc. v Lowe, 55 AD3d 861, 863; Gerry v Commack Union Free Sch. Dist., 52 AD3d 467, 469; Gralnik v Brighton Beach Assocs., LLC, 3 AD3d 518; Dawson v Cafiero,
292 AD2d 488). In any event, even if the plaintiff's expert affidavit
could have properly been considered, the result would not have been

The bold is mine.


Racwel Constr., LLC v Manfredi, 2009 NY Slip Op 02981(App. Div., 2nd, 2009)

"As this case was tried without a jury, this Court's authority is as
broad as that of the trial court, and this Court may render a judgment
it finds warranted by the facts, taking into account in a close case
the fact that the trial judge had the advantage of seeing the
(State Farm Mut. Auto Ins. Co. v Stack, 55 AD3d 594, 595, citing Northern Westchester Professional Park Assoc. v Town of Bedford, 60
NY2d 492, 499). As the Supreme Court's findings and determinations
concerning liability were warranted by the facts, they will not be
disturbed (see Stojowski v D'Sa, 28 AD3d 645; Manzo v Gross, 19 AD3d 379; Chambers v McIntryre, 5 AD3d 344).

The Supreme Court also properly
dismissed the counterclaims based upon its conclusion that the
testimony of both experts was of no probative value. "The opinion
testimony of an expert must be based on facts in the record or
personally known to the witness. . . An expert may not reach a
conclusion by assuming material facts not supported by the evidence,
and may not guess or speculate in drawing a conclusion"
(Quinn v Artcraft Constr., 203 AD2d 444, 445, citing Cassano v Hagstrom, 5 NY2d 643, 646; see Shi Pei Fang v Heng Sang Realty Corp., 38 AD3d 520, 521; Cappolla v City of New York, 302
AD2d 547, 549). Here, the record is clear that the contractor who took
over after the plaintiff's involvement was terminated lacked the
"requisite skill, training, education, knowledge, or experience to
render a reliable opinion" on the quality of the home repair done at
the premises (De Hernandez v Lutheran Med. Ctr., 46 AD3d 517, 518; see Matott v Ward, 48 NY2d 455, 459; Miele v American Tobacco Co., 2 AD3d 799, 802; Pignataro v Galarzia, 303 AD2d 667, 668; Karasik v Bird, 98
AD2d 359, 362). Additionally, since it could not be determined whether
certain damages were caused by the plaintiff or existed before the
plaintiff started working, or whether seemingly defective work was, in
fact, work that the plaintiff could not complete because its
involvement in the project was terminated by the defendants, any
conclusions as to damages caused by defective workmanship could only be
based on assumption and speculation, not on facts in the record or on
facts personally known by the witness (see Shi Pei Fang v Heng Sang Realty Corp., 38 AD3d at 521; Cappolla v City of New York, 302 AD2d at 549; Quinn v Artcraft Constr., 203 AD2d at 445).

Similarly, because the construction valuation expert did not see
the premises before the plaintiff commenced work on it, he could only
speculate as to what had been demolished and how much labor had been
involved. Thus, his conclusions, too, were not based on facts in the
record or personally known to him
(see Shi Pei Fang v Heng Sang Realty Corp., 38 AD3d at 521; Cappolla v City of New York, 302 AD2d at 549; Quinn v Artcraft Constr., 203
AD2d at 445), and the court providently exercised its discretion in
disregarding his testimony and report regarding the plaintiff's alleged
overcharges. Without the evidence provided by the experts, the
defendants failed to meet their burden of proof on their counterclaims
(see Feldin v Doty, 45 AD3d 1225, 1226; Weinberg v Finkelstein, 112 AD2d 218, 219; De Vries v De Vries, 66 AD2d 832).

The bold is mine.