N.Y. C.P.L.R. § 3101

Section 3101(d)(1)(i) permits preclusion of expert testimony when untimely disclosure causes prejudice and surprise.

Atkinson v. Golub Corp. · filed 2000-12-27(d)(1)(i)

The court properly exercised its discretion in precluding the testimony of defendant’s medical expert based upon the prejudice and surprise to plaintiffs resulting from defendant’s untimely disclosure (see, CPLR 3101 [d] [1] [i]; cf, Connors v Sowa, 251 AD2d 989).

Adequate expert disclosure under Section 3101(d)(1) does not warrant precluding the expert from testifying at trial.

Hegler v. Loews Roosevelt Field Cinemas, Inc. · filed 2001-02-26(d)(1)

Moreover, the expert disclosure provided by the defendant pursuant to CPLR 3101 (d) (1) was adequate (see, Marshall v 130 N. Bedford Rd. Mount Kisco Corp., 277 AD2d 432; McGlauflin v Wadhwa, 265 AD2d 534).

Section 3101(a) governs disclosure concerning a party’s employees, even when they are offered as experts; subsection (d) governs disclosure concerning experts who are not employees.

Lippel v. City of New York · filed 2001-03-27(a)

In any event, the scope of disclosure for employees of a party, whether noticed as experts or not, is defined by CPLR 3101 (a), rather than CPLR 3101 (d), which governs the extent of disclosure in instances where non-employee expert witnesses are involved.

A court may consider an expert’s affidavit despite failure to serve the required notice when the failure was not intentional or willful and the opposing party shows no prejudice.

Simpson v. Tenore · filed 2001-10-22(d)(1)(i)

There is no evidence that the plaintiff intentionally or willfully failed to disclose the identity of his expert witness, nor has prejudice to the defendants been shown. Under these circumstances, the Supreme Court providently exercised its discretion in considering the expert’s affidavit despite the plaintiffs failure to serve a notice pursuant to CPLR 3101 (d) (1) (i) (see, Blade v Town of N. Hempstead, supra; Martin v NYRAC, Inc., 258 AD2d 443).

CPLR 3101(d) sets no deadline for expert disclosure; a court must exercise discretion when deciding whether to preclude a late-disclosed expert.

Gushlaw v. Roll · filed 2002-01-10(d)

As is now well known, CPLR 3101 (d) provides for expert disclosure but establishes no time lines for compliance with its provisions. ... Rather, the court seems to have taken the position that the local rule mandated preclusion and that it had no choice in the matter. Accordingly, prior to retrial of this matter, Supreme Court should consider anew whether to preclude the oral surgeon from testifying on behalf of defendant.

Section 3101(i) requires disclosure of all surveillance materials, including outtakes, but does not require production before the plaintiff is deposed.

Tran v. New Rochelle Hospital Medical Center · filed 2002-03-21(i)

CPLR 3101 (i) does expand the scope of the discovery to which the plaintiff is entitled, but it fails to address the question at the crux of this appeal, which the Court of Appeals specifically confronted in DiMichel, namely, the order of priority in disclosing the video materials.

CPLR 3101 (i) requires disclosure of surveillance materials upon demand, even before the plaintiff has been deposed.

Falk v. Inzinna · filed 2002-10-21(i)

Accordingly, we hold that the plaintiff is entitled to surveillance materials upon demand, pursuant to CPLR 3101 (i), regardless of whether the plaintiff has been deposed.

Section 3101 permits a court to deny preclusion of expert testimony when delayed disclosure was not intentional and the opposing parties have not shown prejudice.

Silverberg v. Community General Hospital · filed 2002-01-17(d)(1)(i)

Initially, there is no evidence in this record which suggests that plaintiffs’ failure to disclose was willful or intentional. Furthermore, we cannot say that plaintiffs’ reasons for the delay herein were unreasonable under the circumstances. We note that defendants failed to assert prejudice in their motion papers, nor did they assert that there was insufficient time to prepare for trial inasmuch as expert disclosure was made almost four months prior to the scheduled trial date. Upon this record, we do not find that Supreme Court abused its discretion in denying defendants’ motions for preclusion pursuant to CPLR 3101.

Expert testimony need not be precluded when it is not so inconsistent with the expert witness disclosure or so misleading as to warrant preclusion.

Neumire v. Kraft Foods, Inc. · filed 2002-02-01(d)(1)(i)

Additionally, we conclude that the court did not abuse its discretion in denying plaintiffs’ objection to certain testimony by Kraft’s expert that allegedly exceeded the scope of Kraft’s expert witness disclosure (see, CPLR 3101 [d] [1] [i]). That testimony “was not so inconsistent with the information and opinions contained [in the expert witness disclosure], nor so misleading, as to warrant preclusion of the expert testimony” (Andaloro v Town of Ramapo, 242 AD2d 354, 355, lv denied 91 NY2d 808, quoting Hageman v Jacobson, 202 AD2d 160, 161 [internal quotation marks omitted]; see, Burton v State of New York, 283 AD2d 875, 877-878).

Failure to serve CPLR 3101(d) notice did not justify precluding the medical expert’s testimony on causation in this case.

Bunting v. Selesnick · filed 2002-12-05(d)

At issue in this medical malpractice action is whether it was error for the trial court to refuse to allow plaintiff’s medical expert to testify on the ground that no CPLR 3101 (d) notice had been served regarding the physician, and if so, whether such error was harmless. We find that the trial court erred in precluding plaintiff’s medical expert from testifying as to causation and that such error was not harmless.

CPLR 3101(d) precludes a party from offering an undisclosed expert only when the failure to disclose was intentional or willful and prejudiced the opposing party.

Young v. Long Island University · filed 2002-08-12(d)

This Court has held that preclusion for failure to comply with CPLR 3101 (d) is improper “unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party” (Shopsin v Siben & Siben, 289 AD2d 220, 221 [internal quotation marks omitted]; see Cutsogeorge v Hertz Corp., 264 AD2d 752). In the instant case, there was no showing of an intentional or willful failure to disclose and no showing of prejudice.

Section 3101(d)(1)(i) permits late retention of an expert upon good cause shown.

Pilecki v. Cromwell · filed 2002-12-30(d)(1)(i)

We disagree with plaintiff that the court abused its discretion as a matter of law in permitting that expert testimony. CPLR 3101 (d) (1) (i) specifically permits the late retention of an expert upon good cause shown. The Hospital disclosed the expert three weeks before trial and the disclosure was made contemporaneously with plaintiff’s disclosure of expert testimony. Moreover, the record contains no evidence of willfulness.

Section 3101(d) permits preclusion of expert testimony for failure to provide the required expert disclosure, but an unexchanged expert response is not grounds for dismissing the complaint.

Mulligan v. New York Cornell Medical Center · filed 2003-04-29(d)

Similarly, the fact that no CPLR 3101 (d) expert response had been exchanged is not a basis for dismissal. A party may be precluded from introducing its expert’s testimony at trial by failing to comply with the requirements of CPLR 3101 (d).

Section 3101(d) does not require preclusion of an expert for failure to respond to an expert disclosure notice served by a party whose answer has been stricken.

Langer v. Miller · filed 2003-05-20(d)

Thus, the inquest court correctly refused to preclude plaintiffs expert from testifying even though plaintiff did not respond to the CPLR 3101 (d) notice that defendants served in connection with the inquest.

Failure to serve expert notice under CPLR 3101(d) does not automatically justify precluding evidence of a professional license’s value.

Klutchko v. Baron · filed 2003-02-03(d)

Moreover, the Supreme Court improvidently precluded the husband from proving the value of the wife’s law license because he failed to serve expert notice (see CPLR 3101 [d]), and erred in opining that the license had no value because the wife had not practiced law in a number of years.

Section 3101(d)'s expert notice requirement did not justify precluding proof of a professional license's value where the court treated the opposing party's expert differently.

Klutchko v. Baron · filed 2003-11-10(d)

Moreover, the Supreme Court improvidently precluded the husband from proving the value of the wife’s law license because he failed to serve expert notice (see CPLR 3101 [d]), and erred in opining that the license had no value because the wife had not practiced law in a number of years. This treatment was inconsistent with the way in which the Supreme Court treated the wife’s expert and the inclusion of the husband’s now-suspended medical license for equitable distribution.

Section 3101(d)(1) does not require preclusion of expert testimony when late disclosure was neither willful nor prejudicial.

Colome v. Grand Concourse 2075 LLC · filed 2003-02-18(d)(1)

The record amply demonstrates that plaintiffs’ failure to timely comply with the notice requirements of CPLR 3101 (d) (1) was not willful and was not prejudicial (see Flour City Architectural Metals v Sky-Lift Corp., 242 AD2d 471), particularly after the motion court adjourned the trial for one month to give defendants the opportunity to retain their own expert (see Gallo v Linkow, 255 AD2d 113, 117).

Under CPLR 3101(d), a court may exercise discretion to deny a motion to preclude evidence at trial.

Rivera v. City of New York · filed 2003-06-23(d)

Since we are reinstating the complaint, we note that the Supreme Court providently exercised its discretion in denying the plaintiffs’ motion to preclude the City defendants from offering certain evidence at trial (see CPLR 3101 [d]; see generally Martin v NYRAC, 258 AD2d 443 [1999]; cf. Tamborino v Burakoff, 224 AD2d 609 [1996]).

Section 3101(d) gives additional time for expert disclosure but does not relieve a plaintiff responding to a summary judgment motion of the obligation to provide sufficient expert medical proof.

Suib v. Keller · filed 2004-04-01(d)

It is irrelevant that CPLR 3101 (d) and court rules provide additional time for expert disclosure. The statute and rules did not relieve plaintiffs of the obligation to respond to defendant’s motion with expert medical proof sufficient to create issues of fact regarding medical malpractice.

Section 3101(d)(1)(i) governs the content and timing of expert disclosure and permits a just order when an expert report is served too close to trial.

Drago v. Tishman Constr. Corp. of N. Y. · filed 2004-05-28(d)(1)(i)

In relation to policy, the court finds support for disclosure under CPLR 3101 (d) (1) (i), which governs the content and timing of disclosure of an expert's report. This provision permits courts to assure no prejudice results when the expert report is furnished "an insufficient period of time before the commencement of trial to give appropriate notice thereof," by allowing the court, in its discretion, to "make whatever order may be just" (CPLR 3101 [d] [1] [i]; see Siagha v Salant-Jerome, Inc. , 271 AD2d 274, 274 [1st Dept 2000], lv denied 96 NY2d 714 ... [2001] [determination regarding application of CPLR 3101 (d) approved as "a proper exercise of discretion"]; see 44 NY Jur 2d, Disclosure § 96 ["Expert's Identity and Subject of Testimony"]).

Section 3101(d)(1)(i) permits preclusion of an expert when a party’s willful delay in responding to expert disclosure demands prejudices the opposing parties.

Bickford v. St. Francis Hospital · filed 2005-06-06(d)(1)(i)

The record supports the Supreme Court’s findings that the plaintiffs failure to respond in a timely manner to the demands for expert disclosure was willful, and that the defendants Joseph Prisco, Mid-Hudson Oral and Maxillofacial Surgeons, P.C., Vincent Catalano, Joseph Arcuri, Vittal Rao, and Elliot Levine (hereinafter the remaining defendants) suffered prejudice as a result of the belated disclosure (cfi Lanoce v Kempton, 8 AD3d 449 [2004]; Shopsin v Siben & Siben, 289 AD2d 220 [2001]). Under these circumstances, the court properly granted the motions to preclude the plaintiffs sole expert from testifying at the trial (see CPLR 3101 [d] [1] [i]; Vigilant Ins. Co. v Barnes, 199 AD2d 257 [1993]).

Section 3101(d) gives trial courts discretion to fashion a just remedy for late notice of expert testimony.

Alston v. New York City Transit Authority · filed 2005-11-15(d)

However, the trial court had discretion under CPLR 3101 (d) to fashion a remedy consistent with justice, and, under the present circumstances, such discretion was not improvidently exercised (see Jefferson v Temco Servs. Indus., 272 AD2d 196 [2000]; Busse v Clark Equip. Co., 182 AD2d 525, 526 [1992]).

Section 3101(d)(1) permits preclusion of an expert disclosed on the eve of trial when the party fails to show good cause for the delay and that the late disclosure was unintentional.

Wolfer v. 184 Fifth Ave. LLC · filed 2006-03-14(d)(1)

The court properly precluded plaintiffs’ proposed expert engineer from testifying at trial since they failed to demonstrate good cause for their delay in disclosing this witness’s information and that their failure to do so until the eve of trial was not intentional (Kassis v Teachers Ins. & Annuity Assn., 258 AD2d 271 [1999], supra).

Timely and sufficient expert notice under section 3101(d) does not warrant precluding the expert’s testimony for defective notice.

Dwight v. New York City Transit Authority · filed 2006-06-20(d)

Inasmuch as defendant’s CPLR 3101 (d) expert notice was timely and sufficient, preclusion of the testimony of defendant’s expert on the ground of defective notice was properly denied.

Section 3101(d)(1) gives courts discretion to address disputes over expert disclosure.

Kudelko v. Dalessio · filed 2006-11-01(d)(1)

In any case, CPLR 3101 (d) (1) gives the court the discretion to structure a solution to disputes in regard to expert disclosure.

Section 3101(d)(1)(i) permits a court to allow testimony from an expert disclosed late for good cause, but retaining an expert for years without making a timely disclosure did not establish good cause here.

Tsatsakis v. Booth Memorial Medical Center · filed 2007-02-13(d)(1)(i)

While CPLR 3101 (d) (1) (i) vests courts with discretion to allow experts to testify “for good cause shown,” here, the Supreme Court improvidently ... exercised its discretion in admitting the testimony, as the plaintiff failed to establish “good cause” for failing to exchange a proper disclosure as to Twersky within a reasonable time after she had been retained.

A court may allow a party to obtain a new expert and adjourn trial when willful noncompliance with CPLR 3101(d) has not been established.

Ferro v. Lee · filed 2008-02-05(d)

Here, since the defendant did not establish willful noncompliance with CPLR 3101 (d) on the plaintiffs’ part, the Supreme Court providently exercised its discretion in permitting the plaintiffs to obtain a new expert and adjourning the trial in this matter (see Hernandez-Vega v Zwanger-Pesiri Radiology Group, 39 AD3d 710 [2007]; Shopsin v Siben & Siben, 289 AD2d 220 [2001]; cf. Gayz v Kirby, 41 AD3d 782 [2007]).

Section 3101(d)(1)(i) sets no specific deadline for responding to a demand for expert witness information, and late disclosure does not warrant preclusion absent a willful failure to disclose and prejudice to the opposing party.

Saldivar v. I.J. White Corp. · filed 2007-12-11(d)(1)(i)

“CPLR 3101 (d) (1) (i) does not require a party to respond to a demand for expert witness information ‘at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute,’ unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party” (Aversa v Taubes, 194 AD2d 580, 582 [1993], quoting Lillis v D’Souza, 174 AD2d 976 [1991]; see Gayz v Kirby, 41 AD3d 782 [2007]).

Section 3101(d)(1)(i) permits a court to preclude a belatedly disclosed expert when the delay may prejudice the opposing party.

Marwin v. Top Notch Construction Corp. · filed 2008-04-22(d)(1)(i)

Under the circumstances, including, among other things, the ...plaintiffs belated expert disclosure pursuant to CPLR 3101 (d) (1) (i), and the potential prejudice to the defendants, the Supreme Court providently exercised its discretion in precluding the plaintiffs expert from testifying (see CPLR 3101 [d] [1] [i]; Bickford v St. Francis Hosp., 19 AD3d 344, 346 [2005]; Fava v City of New York, 5 AD3d 724, 724-725 [2004]).

CPLR 3101(d) permits exclusion of expert testimony when late notice lacks good cause and prejudices the opposing party.

Caccioppoli v. City of New York · filed 2008-04-29(d)

However, the Supreme Court improvidently exercised its discretion in permitting the defendants City of New York and Candido (hereinafter together the City defendants) to offer the testimony of a radiologist, Dr. A. Robert Tantleff, over the plaintiffs’ objection. Counsel for the City defendants gave the plaintiffs notice pursuant to CPLR 3101 (d) of the doctor’s testimony one day before trial, and failed to show good cause for their last-minute retention of Tantleff (see Klatsky v Lewis, 268 AD2d 410, 411 [2000]).

CPLR 3101(d) does not warrant precluding expert testimony for late disclosure without evidence of intentional or willful failure to disclose and prejudice to the opposing party.

Carlson v. Porter · filed 2008-07-11(d)

Although plaintiffs did not provide any disclosure with respect to their expert economist until shortly before trial, we conclude that the court properly denied the motion of MVP to preclude the economist’s testimony. “[Preclusion for failure to comply with CPLR 3101 (d) is improper unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party” (Marchione v Greenky, 5 AD3d 1044, 1045 [2004] [internal quotation marks omitted]; see Tronolone v Praxair, Inc., 39 AD3d 1146, 1147 [2007]).

CPLR 3101(d)(1)(i) does not require preclusion of an expert witness when good cause explains the delay in disclosure.

Klotz v. Warick · filed 2008-07-24(d)(1)(i)

Notably, CPLR 3101 (d) (1) (i) does not mandate preclusion of witness testimony when “good cause” exists for a party’s delay in producing an expert (see Marra v Hensonville Frozen Food Lockers, 189 AD2d 1004, 1005 [1993]).

Section 3101(a) supports precluding expert testimony when the witnesses are disclosed only after trial has begun.

Taveras v. Amir · filed 2008-12-23(a)

The Supreme Court also did not improvidently exercise its discretion in precluding the testimony of two expert witnesses who had been retained by the defendants Emérito DeLeon and Elrac, Inc. The plaintiff did not receive disclosure of these witnesses until the trial was already under way (see CPLR 3101 ... [a]), and their testimony was not even offered on behalf of DeLeon or Elrac, Inc., who had previously settled with the plaintiff, and who were dismissed from the action following the liability verdict (see generally Fava v City of New York, 5 AD3d 724 [2004]).

Section 3101(d)(1)(i) generally does not warrant preclusion of late expert reports unless the noncompliance was willful or the party seeking preclusion was prejudiced.

Nathel v. Nathel · filed 2008-10-23(d)(1)(i)

Preclusion of expert reports on the ground of failure to comply with the rules governing exchange of reports is generally unwarranted, absent a showing that the noncompliance was willful or the party seeking preclusion was prejudiced by the lateness of the exchange (CPLR 3101 [d] [1] [i]; 22 NYCRR 202.16 [g] [2]; McDermott v Alvey, Inc., 198 AD2d 95 [1993]).

CPLR 3101(d)(1)(i) does not require a party to retain an expert at any particular time.

LaMasa v. Bachman · filed 2008-11-20(d)(1)(i)

With respect to the experts whose designations were made shortly before trial, CPLR 3101 (d) (1) ...(i) does not require a party to retain an expert at any particular time, and the court allowed defendant appropriate additional disclosure.

Section 3101(d)(1)(i) generally does not warrant precluding expert testimony for late disclosure without a showing that the delay was willful or prejudicial.

Martin v. Triborough Bridge & Tunnel Authority · filed 2010-05-11(d)(1)(i)

The trial court properly exercised its discretion in denying plaintiffs application to preclude TBTA from introducing the expert testimony of a professional engineer as to the cause of the accident. Preclusion of expert evidence on the ground of failure to give timely disclosure, as called for in CPLR 3101 (d) (1) (i), is generally unwarranted without a showing that the noncompliance was willful or prejudicial to the party seeking preclusion (Nathel v Nathel, 55 AD3d 434 [2008]).

Section 3101(d) governs expert disclosure; the court may consider reports submitted after the note of issue when both parties submit their reports late.

Sierra v. D'Apuzzo · filed 2010-06-10(d)

Plaintiff served her CPLR 3101 (d) response on October 12, 2009 and did not serve her expert’s affidavit until she served her opposition to the defendant’s summary judgment motion. ... Any expert reports to be used in a summary judgment motion should have been exchanged prior to the note of issue and certificate of readiness following the ruling in Singletree. ... Here, since both parties submit expert reports that were written after the note of issue and certificate of readiness were filed, the court, in its discretion, declines the defendant’s request to reject the plaintiffs expert’s report and considers both the defendant’s and the plaintiff’s experts’ reports.

Section 3101(d) permits a court to decline to consider an expert affidavit when the party offers no excuse for failing to identify the expert during discovery.

Kopeloff v. Arctic Cat, Inc. · filed 2011-05-10(d)

The plaintiff did not provide any excuse for failing to identify the expert in response to the plaintiffs discovery demands. Indeed, the defendant was unaware of the expert until the defendant was served with the expert’s affidavit in response to its summary judgment motion, even though the record discloses that the expert had been retained by the plaintiff approximately 18 months earlier. Under such circumstances, the Supreme Court properly declined to consider the affidavit (see ...).

A court may consider an expert affidavit despite a party’s failure to serve the expert disclosure required by CPLR 3101(d).

Ozugowski v. City of New York · filed 2011-12-20(d)

Initially, although the plaintiff failed to serve a notice of disclosure of her expert physician pursuant to CPLR 3101 (d), ... the defendant failed to show that the Supreme Court improvidently exercised its discretion in considering that expert’s affidavit, under the circumstances herein (see Saldivar v I.J. White Corp., 46 AD3d 660, 661 [2007]).

Section 3101(d) permits an expert to testify despite late disclosure when the failure to disclose was not willful or intentional and caused no prejudice.

Banks v. City of New York · filed 2012-02-23(d)

The court properly allowed plaintiff’s economist to testify about future damages, since there was no evidence of a willful or intentional failure to disclose or of prejudice to defendants (see CPLR 3101 [d]; St. Hilaire v White, 305 AD2d 209, 210 [2003]; McDermott v Alvey, Inc., 198 AD2d 95 [1993]).

Section 3101(d) permits a court to decline to consider an expert affidavit when the expert was identified after discovery was certified complete and no excuse was given for failing to identify the expert in response to discovery demands.

Lombardi v. Alpine Overhead Doors, Inc. · filed 2012-02-28(d)

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 did not provide any excuse for failing to identify the expert in response to the defendant’s discovery demands (see CPLR 3101 [d]; Kopeloff v Arctic Cat, Inc., 84 AD3d 890, 890-891 [2011]; Ehrenberg v Starbucks Coffee Co., 82 AD3d 829, 830-831 [2011]; Gerardi v Verizon N.Y., Inc., 66 AD3d 960, 961 [2009]).

Section 3101(d)(1)(i) permits a court to reject a late expert disclosure when there is no good cause for the delay and allowing it would prejudice the opposing party.

GALLAGHER, ELLEN J. v. GALLAGHER, EDWARD R. · filed 2012-03-23(d)(1)(i)

The court properly determined that the husband failed to demonstrate “good cause” for the late disclosure, which was not made until the middle of the trial, and that permitting the late disclosure would be prejudicial to the wife (CPLR 3101 [d] [1] [i]; see Caccioppoli v City of New York, 50 AD3d 1079, 1080; see also Saggese v Madison Mut. Ins. Co., 294 AD2d 900, 901; cf. Peck v Tired Iron Transp., 209 AD2d 979, 979).

CPLR 3101 permits a court to exclude a witness disclosed on the eve of trial after a lengthy delay without a reasonable explanation.

Crawford v. Village of Millbrook · filed 2012-04-24

The Supreme Court providently exercised its discretion in denying the plaintiff’s motion on the eve of trial to admit the testimony of a newly identified witness. The plaintiff failed to disclose this witness until six years after commencing the action, and failed to provide a reasonable explanation for his delay in disclosing the identity of the witness (see CPLR 3101; ...).

Section 3101(d)(1)(i) permits rejection of an expert affidavit when the expert is first disclosed in opposition after the note of issue and certificate of readiness have been filed.

Scott v. Westmore Fuel Co. · filed 2012-06-12(d)(1)(i)

However, the court properly rejected the expert affidavit as inadmissible, given that the affidavit, which was notarized in New Jersey, was lacking a certificate of conformity (see CPLR 2309 [c]), and that plaintiff did not disclose the expert until the filing of his affirmation in opposition, after the note of issue and certificate of readiness had been filed (see CPLR 3101 [d] [1] [i]; Colon v Chelsea Piers Mgt., Inc., 50 AD3d 616 [2008]; Safrin v DST Russian & Turkish Bath, Inc., 16 AD3d 656 [2005]; cf. Baulieu v Ardsley Assoc., L.P., 85 AD3d 554, 555 [2011]).

An allegedly late expert disclosure does not necessarily make the expert’s affidavit inadmissible on summary judgment.

Roman v. 233 Broadway Owners, LLC · filed 2012-10-17(d)

With respect to motion and cross motions for summary judgment, contrary to ADT’s and the building defendants’ contentions, under the particular circumstances of this case, the plaintiff’s allegedly untimely disclosure did not render her expert’s affidavit inadmissible (see Rivers v Birnbaum, — AD3d —, 2012 NY Slip Op 06935 [2012] [decided herewith]; cf. Pellechia v Partner Aviation Enters., Inc., 80 AD3d 740, 741 [2011]; Gerardi v Verizon N.Y., Inc., 66 AD3d 960, 961 [2009]; Wartski v C.W. Post Campus of Long Is. Univ., 63 AD3d 916, 917 [2009]).

Section 3101(d)(1)(i) does not automatically make expert disclosure untimely when it occurs after the note of issue is filed, and a court may consider that expert’s affidavit on summary judgment.

Rivers v. Birnbaum · filed 2012-10-17(d)(1)(i)

We now clarify that the fact that the disclosure of an expert pursuant to CPLR 3101 (d) (1) (i) takes place after the filing of the note of issue and certificate of readiness does not, by itself, render the disclosure untimely. Rather, the fact that pretrial disclosure of an expert pursuant to CPLR 3101 (d) (1) (i) has been made after the filing of the note of issue and certificate of readiness is but one factor in determining whether disclosure is untimely. If a court finds that the disclosure is untimely after considering all of the relevant circumstances in a particular case, it still may, in its discretion, consider an affidavit or affirmation from that expert submitted in the context of a motion for summary judgment, or it may impose an appropriate sanction.

Section 3101(d)(1) permits a court to consider a late-disclosed expert affidavit when the opposing party also disclosed its expert late and shows no prejudice.

LeMaire v. Kuncham · filed 2013-01-09(d)(1)

Under the circumstances of this case, the refusal of the Supreme Court to consider the plaintiffs’ expert affidavit submitted in opposition to Rosenberg’s motion for failure to comply with CPLR 3101 (d) (1) was an improvident exercise of discretion (see Rivers v Birnbaum, 102 AD3d 26 [2012]). Rosenberg disclosed his own expert pursuant to CPLR 3101 (d) (1) more than one month after the note of issue and certificate of readiness was filed, and approximately two weeks before he moved for summary judgment. There was no justification for treating the parties differently, and no evidence of prejudice from the plaintiffs’ late disclosure of their expert (see Hayden v Gordon, 91 AD3d 819, 820 [2012]).

Section 3101(d)(1)(i) gives a court discretion to preclude an expert affirmation when disclosure was untimely, unexplained, and apparently wilful.

Kozlowski v. Oana · filed 2013-01-16(d)(1)(i)

Where, as here, a defendant fails to disclose an expert witness in its answer to a plaintiffs discovery demand pursuant to CPLR 3101 (d) (1) (i) prior to the filing of the note of issue and certificate of readiness, the Supreme Court has the discretion to consider an affirmation from that expert in the context of a post-note of issue, timely motion for summary judgment, or to impose an appropriate sanction as the circumstances may warrant (see Rivers v Birnbaum, 102 AD3d 26, 44 [2012]). Here, the Supreme Court providently exercised its discretion in granting that branch of the plaintiffs’ cross motion which was to preclude the defendants from offering Dr. Weber’s expert affirmation in support of their motion for summary judgment in light of, inter alia, the defendants’ untimely disclosure of Dr. Weber as their expert, their failure to provide any excuse for the delay, and circumstances indicating that their failure to disclose was wilful (see id.; Kopeloff v Arctic Cat, Inc., 84 AD3d 890, 890-891 [2011]).

Section 3101(d) requires timely disclosure of an expert’s causation theory; an amended report disclosed immediately before trial violated that requirement.

Krimkevitch v. Imperiale · filed 2013-03-06(d)

However, the Supreme Court improvidently exercised its discretion in permitting Dr. Anthony Spataro, an orthopedic surgeon, to testify that the plaintiffs injuries were caused solely by a preexisting condition rather than the subject automobile accident. Dr. Spataro’s conclusion was first reached in his amended report, which was exchanged immediately before trial, in violation of CPLR 3101 (d).

Section 3101(d)(1)(i) does not make expert witness disclosure untimely solely because it occurs after the note of issue and certificate of readiness are filed.

Begley v. City of New York · filed 2013-09-18(d)(1)(i)

Thus, “the fact that the disclosure of an expert pursuant to CPLR 3101 (d) (1) (i) takes place after the filing of the note of issue and certificate of readiness does not, by itself, render the disclosure untimely” (Rivers v Birnbaum, 102 AD3d at 41).

CPLR 3101(d)(1)(i) leaves courts discretion to consider an expert affidavit submitted after the note of issue on a timely summary judgment motion.

Brande v. City of White Plains · filed 2013-06-26(d)(1)(i)

“[A] party’s failure to disclose its experts pursuant to CPLR 3101 (d) (1) (i) prior to the filing of a note of issue and certificate of readiness does not divest a court of the discretion to consider an affirmation or affidavit submitted by that party’s experts in the context of a timely motion for summary judgment” (Rivers v Birnbaum, 102 AD3d 26, 31 [2012]). However, under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in declining to consider the affidavit of the plaintiffs’ expert which was submitted after the filing of the note of issue and certificate of readiness.

Section 3101(d)(1)(i) permits a court to preclude expert testimony when a party discloses the expert months after filing a note of issue and offers no excuse for the delay.

Tienken v. Benedictine Hospital · filed 2013-10-31(d)(1)(i)

Supreme Court refused, however, to consider these affidavits because, despite the hospital’s demand for expert disclosure, plaintiff did not disclose these experts’ identity until approximately six months after she had filed her note of issue and certificate of readiness, and then only in response to the hospital’s summary judgment motion. Nor did she provide any excuse, much less good cause, for the nondisclosure. Given these circumstances, we are unwilling to say that Supreme Court abused is discretion to preclude plaintiffs offer of expert testimony (see CPLR 3101 [d] [1] [i]; Cramer v Spada, 203 AD2d 739, 740 [1994], lv denied 84 NY2d 809 [1994]; Zarrelli v Littauer Hosp., 176 AD2d 1181, 1182 [1991]; see also Yax v Development Team, Inc., 67 AD3d 1003, 1004 [2009]; Colon v Chelsea Piers Mgt., Inc., 50 AD3d 616, 617 [2008]; Safrin v DST Russian & Turkish Bath, Inc., 16 AD3d 656, 657 [2005]).

Section 3101(d)(1) allows a court to decline to consider an expert affidavit when the expert was identified after the note of issue, depending on the circumstances.

Hod v. Fields · filed 2013-11-20(d)(1)

Contrary to the plaintiffs contention, considering all of the relevant circumstances in this case, the Supreme Court did not improvidently exercise its discretion in declining to consider her expert’s affidavit (see generally CPLR 3101 [d] [1]; Rivers v Birnbaum, 102 AD3d 26 [2012]).

Section 3101(d)(1)(i) does not require a party to respond to a demand for expert witness information at any specific time.

Public Administrator of Bronx County v. 485 East 188th Street Realty Corp. · filed 2014-02-18(d)(1)(i)

CPLR 3101 (d) (1) (i) does not, however, require a party to respond to a demand for expert witness information at any specific time, and defendants do not show that they were prejudiced by plaintiff’s reliance on this material in responding to their dispositive motions (see Martin v Triborough Bridge & Tunnel Auth., 73 AD3d 481 [1st Dept 2010], lv denied 15 NY3d 713 [2010]).

Section 3101 permits timely amendment of expert disclosure.

Rand v. 610 Smith St. Corp. · filed 2014-07-02

Respondents are indeed correct that the CPLR and the rules of this court allow the timely amendment of expert disclosure. Accordingly, respondents may attempt to use the updated expert reports at trial. Rand’s motion to preclude the introduction of this information must therefore be denied.

Section 3101(d) governs disclosure of expert testimony and permits preclusion for noncompliance when wilfulness or significant prejudice is shown.

Matter of State of New York v. Dennis K. · filed 2014-08-20(d)

The Supreme Court did not err in denying the appellant’s application to preclude certain expert testimony at the dispositional hearing, based on the State’s failure to comply with CPLR 3101 (d), as no wilfulness or significant prejudice was demonstrated (see Ocampo v Pagan, 68 AD3d 1077, 1078 [2009]; Shopsin v Siben & Siben, 289 AD2d 220, 221 [2001]).

Section 3101(d) requires an expert disclosure to include the substance of the facts and opinions upon which the expert is expected to testify.

Fleisher v. City of New York · filed 2014-09-24(d)

However, the trial court’s decision to exclude certain testimony by Dr. Friedman on the ground that the plaintiffs’ expert disclosure pursuant to CPLR 3101 (d) failed to include “the substance of the facts and opinions upon which Dr. Friedman is expected to testify” was in error, since Dr. Friedman’s report did state the basis of his opinions, albeit tersely.

Section 3101(d)(1) requires expert disclosure in reasonable detail of the facts and opinions on which the expert is expected to testify.

Rivera v. Montefiore Medical Center · filed 2014-12-04(d)(1)

CPLR 3101(d)(1) requires expert disclosure, "in reasonable detail," of "the substance of the facts and opinions on which each expert is expected to testify," in order to provide the plaintiff with the defendant's theories of the case in advance of trial ( see Chapman v State of [*2]New York , 189 AD2d 1075 [3d Dept 1993]).

Section 3101(d)(1) permits consideration of an expert affidavit when there is no willful nondisclosure or prejudice.

Matias v. Grose · filed 2014-12-09(d)(1)

In the absence of a showing of willful non-disclosure or prejudice to defendants, the court properly considered plaintiff’s expert affidavit opining that defendant driver violated Vehicle and Traffic Law § 1129 (a) by failing to maintain a safe distance from the tractor trailer in front of him (see Herman v Moore, 106 AD3d 666 [1st Dept 2013]; Baulieu v Ardsley Assoc., L.P., 85 AD3d 554, 555 [1st Dept 2011]; CPLR 3101 [d] [1]).

Section 3101(d) requires intentional or willful nondisclosure and prejudice before expert testimony may be precluded.

SISEMORE, II, KENNETH W. v. LEFFLER, CASEY DONALD · filed 2015-02-06(d)

“[P]reclusion [of expert testimony] for failure to comply with CPLR 3101 (d) is improper unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party”

Section 3101(d)(1)(i) permits a court to consider late expert disclosure on a timely summary judgment motion when the delay was not intentional or willful and caused no prejudice.

Abreu v. Metropolitan Transportation Authority · filed 2014-05-28(d)(1)(i)

Thus, the Supreme Court properly considered the Lubliner affirmation and affirmed report even though Lubliner was only disclosed to the Westrans defendants after the note of issue was filed, as there was no evidence that the plaintiffs’ delay in retaining the expert or in serving their expert information was intentional or willful, and prejudicial, to the Westrans defendants (see Burbige v Siben & Ferber, 115 AD3d 632 [2014]; CPLR 3101 [d] [1] [i]).

Section 3101(d)(1)(i) governs expert disclosure, and the court may deny disclosure first submitted after the note of issue and in opposition to summary judgment.

DeSimone v. City of New York · filed 2014-07-03(d)(1)(i)

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered January 4, 2013, which, insofar as appealed from as limited by the briefs, granted defendants’ motions for summary judgment dismissing plaintiff Paul DeSimone’s Labor Law § 241 (6) claim, granted the motions of Maximum Security Products Corp., doing business as Hillside Iron Works Corp. (Hillside), and Danco Electrical Contractor, Inc. (Danco) for summary judgment dismissing the common-law negligence claims against them, denied plaintiff’s cross motion to submit an expert disclosure pursuant to CPLR 3101 (d) (1) (i), and conditionally granted the motion of defendants Dormitory Authority of the State of New York (DASNY) and Bovis Lend Lease LMB, Inc. (Bovis) for contractual indemnification against defendant Hugh O’Kane Electric Co. LLC (O’Kane), unanimously modified, on the law, to reinstate the Labor Law § 241 (6) claim except as against defendant the City of New York, and otherwise affirmed, without costs. ... The court providently exercised its discretion in denying plaintiff’s cross motion to submit a disclosure of his expert professional engineer, since it was first submitted in opposition to defendants’ motions for summary judgment dismissing the complaint, and subsequent to the filing of the note of issue and certificate of readiness (see Garcia v City of New York, 98 AD3d 857, 858-859 [1st Dept 2012]).

Section 3101(d)(1)(i) permits the court to deny an expert disclosure first submitted after the note of issue and certificate of readiness.

DeSimone v. City of New York · filed 2014-10-02(d)(1)(i)

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered January 4, 2013, which, insofar as appealed from as limited by the briefs, ... denied plaintiff’s cross motion to submit an expert disclosure pursuant to CPLR 3101 (d) (1) (i), ... unanimously modified, on the law, to reinstate the Labor Law § 241 (6) claim as against the owner and general contractors, and any subcontractor that the court determines had the authority to supervise and control the lighting work in question such as would render it the general contractor’s statutory agent, and otherwise affirmed, without costs. The court ... providently exercised its discretion in denying plaintiff’s cross motion to submit a disclosure of his expert professional engineer, since it was first submitted in opposition to defendants’ motions for summary judgment dismissing the complaint, and subsequent to the filing of the note of issue and certificate of readiness (see Garcia v City of New York, 98 AD3d 857, 858-859 [1st Dept 2012]).

Section 3101(d)(1) permits a court to consider expert affidavits despite an allegation that the experts were disclosed late.

Domaszowec v. Residential Management Group LLC · filed 2016-01-19(d)(1)

The court properly considered plaintiff’s expert affidavits, notwithstanding plaintiff’s allegedly untimely disclosure of the experts (see Lebron v SML Veteran Leather, LLC, 109 AD3d 431, 436 n 3 [1st Dept 2013], affd 22 NY3d 1119 [2014]; CPLR 3101 [d] [1]).

Section 3101(d)(1)(i) does not require a party to retain an expert at a particular time; an expert disclosure notice served about eight months before trial can provide sufficient notice.

Dedona v. Di Raimo · filed 2016-03-15(d)(1)(i)

Further, while CPLR 3101 (d) (1) (i) does not require a party to retain an expert at any particular time (see LaMasa v Bachman, 56 AD3d 340, 340-341 [1st Dept 2008]), here plaintiff served the CPLR 3101 (d) expert disclosure notice about eight months before trial, which was sufficient notice (see Ramsen A. v New York City Hous. Auth., 112 AD3d 439, 440 [1st Dept 2013]).

CPLR 3101 (i)'s surveillance disclosure rule can require production before a claimant gives sworn testimony at a municipal hearing, even before an action begins.

Barillaro v. City of New York · filed 2016-06-27(i)

Initially, the court notes that CPLR 3102 (c) does not limit the scope of disclosure set forth by CPLR 3101. Instead, it permits a potential plaintiff to obtain items set forth in section 3101, including surveillance footage, prior to the commencement of the action under certain circumstances. ... Instead, the ruling should be applied to all scenarios where a plaintiff is required to give sworn testimony about his claim and defendants possess a surveillance video that may credit or discredit his claims.

An expert affidavit should not be excluded solely because the expert was disclosed after the note of issue was filed when the delay was not intentional, willful, or prejudicial.

Augustin v. Grand Prix New York Racing, LLC · filed 2016-04-20(d)(1)(i)

The Supreme Court improvidently exercised its discretion in declining to consider the affidavit on the ground that the expert was not disclosed until after the note of issue was filed, as there was no evidence that the plaintiffs delay in retaining the expert or in serving her expert information was intentional, willful, or prejudicial to the defendant (see CPLR 3101 [d] [1] [i]; Abreu v Metropolitan Transp. Auth., 117 AD3d 972, 974 [2014]; Burbige v Siben & Ferber, 115 AD3d 632, 633 [2014]; Rivers v Birnbaum, 102 AD3d 26, 41-43 [2012]).

Untimely disclosure of an expert’s identity under subsection (d)(1)(i) alone does not warrant precluding the expert’s affidavit.

Kolbert v. Morania Oil · filed 2016-04-27(d)(1)(i)

Although preclusion of the plaintiffs’ expert’s affidavit based solely on the ground that the plaintiffs did not timely disclose the expert’s identity pursuant to CPLR 3101 (d) (1) (i) was not warranted (see Begley v City of New York, 111 AD3d 5, 36 [2013]; Rivers v Birnbaum, 102 AD3d 26, 35, 42 [2012]), the expert affidavit was insufficient to raise a triable issue of fact, as the expert’s conclusions were speculative and not based upon personal knowledge or evidence in the record (see Leslie v Splish Splash at Adventureland, 1 AD3d 320, 321 [2003]; Masterson v City of New York, 272 AD2d 591 [2000]).

CPLR 3101(d)(1)(i) permits preclusion of a supplemental expert report served well after the expert disclosure deadline and shortly before trial.

Calabrese Bakeries, Inc. v. Rockland Bakery, Inc. · filed 2016-05-12(d)(1)(i)

Moreover, Supreme Court's preclusion of plaintiffs' supplemental expert report at trial, and any reliance thereon, would have also been warranted under CPLR 3101 (d) (1) (i), as plaintiffs served the report on defendants well after the deadline for expert disclosure and roughly six weeks before the scheduled date of trial (see Dombrowski v Moore, 299 AD2d 949, 950-951 [2002]).

A court may deny a midtrial challenge to an expert disclosure when the alleged deficiency was apparent and could have been raised before trial.

Rivera v. Montefiore Medical Center · filed 2016-10-20(d)(1)(i)

The lower courts were entitled to determine, based on the facts and circumstances of this particular case, that the time to challenge the statement's content had passed because the basis of the objection was readily apparent from the face of the disclosure statement and could have been raised -- and potentially cured -- before trial.

Under CPLR 3101(d)(1)(i), late expert disclosure generally does not warrant preclusion without willful noncompliance or prejudice to the opposing party.

Haynes v. City of New York · filed 2016-12-29(d)(1)(i)

"Preclusion of expert evidence on the ground of failure to give timely disclosure, as called for in CPLR 3101(d)(1)(i), is generally unwarranted without a showing that the noncompliance was willful or prejudicial to the party seeking preclusion" ( Martin v Triborough Bridge & Tunnel Auth. , 73 AD3d 481, 482 [1st Dept 2010], lv denied 15 NY3d 713 [2010]). ... Given these circumstances, plaintiff has not shown why 34 days was not enough time to prepare for the cross examination of defendant's expert or that the belated disclosure was otherwise prejudicial ( see Ostrow v New London Pharm ., 278 AD2d 158, 159 [1st Dept 2000]).

Section 3101(d)(1) allows a court to limit a treating physician’s testimony when the opposing party lacked notice that the physician would offer opinions based on separate engineering expertise.

Harris v. Campbell · filed 2017-11-17(d)(1)

Here, one of plaintiff’s treating physicians did not provide any expert disclosure, and during trial he indicated that, in addition to being a medical doctor, he received a Ph.D. in biomechanical engineering and he often relies on his engineering background in his medical practice. Subsequently, that treating physician was asked some questions pertaining to biomechanics, and specifically was asked about the amount of force needed to cause a lumbar injury. We conclude that defendant’s objections to that line of questioning were properly sustained inasmuch as defendant did not receive sufficient notice that the treating physician relied on his engineering background to support his opinions and conclusions about plaintiff’s injuries (see generally id.).

Section 3101(d)(1)(i) permits a court to consider an expert affidavit on summary judgment despite late disclosure when the failure was not intentional or willful and caused no prejudice.

Cobham v. 330 W. 34th SPE, LLC · filed 2018-08-15(d)(1)(i)

Contrary to the plaintiff's contention, the Supreme Court providently exercised its discretion in considering the expert affidavit submitted by the defendants on their motion for summary judgment, since there was no evidence that the failure to disclose the identity of their expert witness pursuant to CPLR 3101(d)(1)(I) was intentional or willful, and there was no showing of prejudice to the plaintiff ( see Yampolskiy v Baron , 150 AD3d 795, 796; Hayden v Gordon , 91 AD3d 819, 820; Hernandez-Vega v Zwanger-Pesiri Radiology Group , 39 AD3d 710, 711).

Section 3101(i) imposes no timing limitation on disclosure of recordings, which must be produced as discovery orders require.

Polakoff v. NYU Hosps. Ctr. · filed 2019-10-29(i)

Disclosures under CPLR 3101(i) are not subject to a timing limitation and thus should have been made pursuant to the court's discovery orders ( see Tai Tran v New Rochelle Hosp. Med. Ctr. , 99 NY2d 383, 389-390 [2003]).

A party seeking to present a substitute expert at trial must show good cause for late disclosure; a vague excuse for the original expert’s unavailability is insufficient.

Geffner v. Mercy Med. Ctr. · filed 2018-12-05(d)(1)(i)

Here, since the plaintiff offered only a vague excuse for the unavailability of the intended expert, without offering any details as to when the plaintiff learned of that expert's unavailability, she failed to establish good cause to offer the testimony of the "substitute expert" ( see Banister v Marquis , 87 AD3d 1046; Caccioppoli v City of [*3]New York , 50 AD3d 1079; Klatsky v Lewis , 268 AD2d 410, 411).

Section 3101(d)(1)(i) permits a court to strike a belated expert disclosure and preclude testimony on a new theory of liability when the delay may prejudice the opposing party.

Holder v. County of Westchester · filed 2019-02-27(d)(1)(i)

Under the circumstances of this case, including, among other things, the plaintiff's belated expert disclosure pursuant to CPLR 3101(d)(1), and the potential prejudice to the defendants, the Supreme Court providently exercised its discretion in granting the defendants' motion to strike [*2]the plaintiff's supplemental responses to the defendants' demand for expert disclosure pursuant to CPLR 3101(d) and to preclude the plaintiff's expert from testifying as to the additional theory of liability ( see CPLR 3101[d][1][i]); Marwin v Top Notch Constr. Corp. , 50 AD3d 977, 977-978; Durant v Shuren , 33 AD3d 843, 844).

Section 3101(d)(1)(i) generally does not warrant precluding expert evidence for late disclosure unless the failure was willful or prejudiced the opposing party.

Rivera v. New York City Hous. Auth. · filed 2019-11-19(d)(1)(i)

"Preclusion of expert evidence on the ground of failure to give timely disclosure, as called for in CPLR 3101(d)(1)(i), is generally unwarranted without a showing that the noncompliance was willful or prejudicial to the party seeking preclusion" ( Martin v Triborough Bridge & Tunnel Auth. , 73 AD3d 481, 482 [1st Dept 2010], lv denied 15 NY3d 713 [2010]). ... In turn, defendant does not show prejudice due to the untimely disclosure, and the trial court properly denied the motion to preclude ( see e.g. Alcantara-Pena v Shanahan , 168 AD3d 550 [1st Dept 2019]).

Section 3101(d) permits preclusion of expert reports and a damages theory when disclosure comes too late to give the opposing party sufficient notice.

Advanced Aerofoil Tech. AG v. MissionPoint Capital Partners LLC · filed 2021-03-30(d)

Supreme Court providently exercised its inherent discretion, pursuant to CPLR 3101(d), by precluding the expert reports and lost profits damage theory, on the ground that plaintiff did not sufficiently place defendant on notice of damages tied to the termination of the long-term agreement with its customer until plaintiff served expert reports.

Section 3101(d)(1) requires expert disclosure to state the substance of the facts and opinions on which the expert is expected to testify.

30-32 W. 31st St. LLC v. Heena Hotel · filed 2021-04-01(d)(1)

The court providently struck plaintiffs' expert disclosure, which failed to disclose the substance of the facts and opinions on which the expert was expected to testify ( see CPLR 3101[d][1]; Rules of the Commercial Division of the Supreme Court ([22 NYCRR 202.70] rule 13[c]; see e.g. Carter v Isabella Geriatric Ctr., Inc. , 71 AD3d 443 [1st Dept 2010]; Galaz v Sobel & Kraus , 280 AD2d 427, 428 [1st Dept 2001]).

Expert disclosure under section 3101(d)(1) must describe the methodology and principles the expert used to reach an opinion.

Munoz v. Rock Group NY Corp. · filed 2021-12-07(d)(1)

However, the lower court improvidently exercised its discretion in denying plaintiff's motion to compel as defendants provided no description of the methodology their expert used to determine the force of the accident and the biomechanical engineering principle he relied upon in reaching his conclusion that the force generated by the accident could not have caused plaintiff's injuries (see Dovberg v Laubach , 154 AD3d 810 [2d Dept 2017]; Carter v Isabella Geriatric Ctr., Inc., 71 AD3d 443 [1st Dept 2010]).

Section 3101(d)(1)(i) governs expert disclosure and permits preclusion of a late expert report when the delay is willful or prejudices the opposing party.

Headwell v. Headwell · filed 2021-10-21(d)(1)(i)

Supreme Court has "broad discretion in controlling discovery and disclosure," including the power to preclude the use of a belatedly filed expert report where the delay was willful or caused prejudice to the opposing party, and the foregoing satisfies us that there was no abuse of that discretion here ( Seale v Seale , 149 AD3d 1164, 1165 [2017] [internal quotation marks and citations omitted]; see CPLR 3101 [d] [1] [i]; 22 NYCRR 202.16 [g] [2]; Nathel v Nathel , 55 AD3d 434, 435 [2008]; Myers v Myers , 255 AD2d 711, 713 [1998]).

Section 3101(i) permits preclusion of surveillance video withheld past discovery deadlines before a deposition, but sets no fixed deadline for disclosing post-deposition surveillance video.

Pizzo v. Lustig · filed 2023-05-10(i)

By applying Tai Tran , the defendant should have been precluded from using the nine-second surveillance video of the plaintiff acquired by ISG in mid-February of 2019, as it was not disclosed prior to the plaintiff's deposition ( see Tai Tran v New Rochelle Hosp. Med. Ctr. , 99 NY2d at 389-390; Polakoff v NYU Hosps. Ctr. , 176 AD3d at 614). ... That said, CPLR 3101(i) provides no fixed deadline for the disclosure of post-deposition surveillance video footage ( see Tai Tran v New Rochelle Hosp. Med. Ctr. , 99 NY2d at 389-390; Polakoff v NYU Hosps. Ctr. , 176 AD3d at 614; Zambrano v Fabregas , 2021 NY Slip Op 30937[U], *2).

Section 3101(d) limits expert disclosure in New York state courts, so a request for expert disclosure generally does not justify delaying a note of issue.

Canales v. Noble Constr. Group, LLC · filed 2024-05-01(d)

And the Court emphasizes that Movants’ focus on expert disclosure is not, as a general matter, a basis to prevent a plaintiff from filing a note of issue as expert disclosure in New York state courts is quite limited under CPLR 3101(d) (see e.g., Rivers v Birnbaum, 102 AD3d 26, 953 NYS2d 232 [2d Dept 2012]).

Section 3101(d)(1)(i) requires appropriate notice of expert witnesses; late disclosures may be stricken when the party gives no reason or good cause for the delay.

Talbert v. C.A.C. Indus., Inc. · filed 2024-10-02(d)(1)(i)

As to the portion of defendants' motion seeking to strike plaintiffs expert disclosures of Dr. McMahon and Dr. Guy, the Court finds that plaintiff failed to provide "appropriate notice" ... pursuant to CPLR §3101 ( d). ... Here, plaintiff has failed to provide any reason for the delay in retaining Dr. McMahon and Dr. Guy, let alone establish good cause for the delay. One such disclosure was a mere seven days prior to the original trial date. As such, plaintiffs expert disclosures for Dr. Mark McMahon and Dr. Ali Guy are stricken.

Section 3101(d) disclosure provides notice of anticipated expert testimony; a court may limit testimony about material that was not disclosed and that the expert did not review until trial.

Drapper v. Horan · filed 2025-02-27(d)

The trial court appropriately limited the testimony of Dr. Kenneth McCulloch, plaintiff's treating orthopedic surgeon. Dr. McCulloch was permitted to testify about his own observations during surgery and matters in his reports and records that were disclosed to defendants, but precluded from testifying concerning the MRI films of plaintiff's shoulder taken after a prior 2008 accident, which Dr. McCulloch did not review until the time of trial. Dr. McCulloch's records did not refer to the 2008 MRI or give any indication that he relied on it in providing treatment to plaintiff. Therefore, defendants had no notice, either through discovery or CPLR 3101(d) disclosure, that Dr. McCulloch would give testimony relating to the 2008 MRI ( see Gjeka v Iron Horse Transp., Inc., 191 AD3d 526, 528 [1st Dept 2021]; Padilla v Freelund , 7 AD3d 258, 259 [1st Dept 2004]).

An expert’s review of a previously unknown MRI does not make the expert a treating physician or make the expert’s complete file discoverable.

Doherty v. 730 Fifth Upper, LLC · filed 2025-05-30(d)

As to the merits of the alleged outstanding medical discovery, movants cite no appellate authority for the proposition that a previously unknown MRI reviewed by a party’s expert doctor transforms that expert doctor into a treating physician. Indeed, the Appellate Division, First Department has expressly held otherwise (Martinez v KSM Holding, 294 AD2d 111 [1st Dept 2002] [disclosure of neurological and other testing in expert reports does not render the expert’s complete file discoverable]).

Section 3101(d)(1)(i) permits expert testimony despite late supplemental disclosure when the delay was not willful and the opposing party was not prejudiced.

Mongeau v. SR Taxi Corp. · filed 2025-02-18(d)(1)(i)

The court also providently exercised its discretion in allowing plaintiff's expert orthopedist to testify concerning MRIs taken after his initial report was prepared, notwithstanding the untimeliness of her disclosure under CPLR 3101(d)(1)(i). There is no evidence that the belated supplemental disclosure was due to plaintiff's willful noncompliance or that defendants were prejudiced by the belated disclosure, especially given that defendants' expert orthopedic surgeon addressed the same MRIs in his report ( see Louise v Hampton Jitney, Inc. , 193 AD3d 514, 514 [1st Dept 2021]).

Section 3101(d)(1)(i) allows a court to deny late disclosure of a new expert when the party gives no good cause for the delay.

Schultz v. Albany Med. Ctr. Hosp. · filed 2025-05-08(d)(1)(i)

CPLR 3101 (d) (1) governs expert disclosure. ... Under these circumstances, we cannot conclude that Supreme Court abused its discretion in denying plaintiff's motion to supplement his expert disclosure ( see Freeman v State of New York , 206 AD3d at 1106; Lasher v Albany Mem. Hosp. , 161 AD3d at 1332; Meyer v Zeichner , 263 AD2d 597, 599 [3d Dept 1999]; Douglass v St. Joseph's Hosp. , 246 AD2d at 697).

Section 3101(d)(1)(i) gives courts discretion to impose a penalty for failure to disclose an expert; an expert affidavit may be excluded when disclosure is late and good cause is lacking.

Kornreich v. Honeyman · filed 2025-08-13(d)(1)(i)

"'Trial courts are vested with broad discretion in making determinations concerning matters of disclosure, including imposing a penalty on a party for its failure to comply with CPLR 3101(d)(1)(i)'" ( Moody v Hmoud , 192 AD3d 1007, 1010 [internal quotation marks omitted], quoting Mazzurco v Gordon , 173 AD3d 1001, 1002; see CPLR 3216; Mercado v Schwartz , 209 AD3d 30, 38). ... Moreover, the plaintiff failed to establish good cause for not disclosing the expert's affidavit before filing the amended note of issue ( see Rocco v Ahmed , 146 AD3d 836, 838). Thus, under the circumstances of this case, the court providently exercised its discretion in declining to consider the plaintiff's expert affidavit ( see Holder v County of Westchester , 169 AD3d 1017, 1018; see also Tardi v Casler-Bladex , 216 AD3d 1267, 1269).

Section 3101(d)(1)(i) allows a court to permit late supplemental expert disclosure in its discretion when the disclosure causes no surprise and fairness favors allowing the testimony.

Lynskey v. Bunch · filed 2025-11-10(d)(1)(i)

Whether to allow the late filing of an expert witness response rests in the discretion of the Court. ... In this Court's view, it would be inherently unfair to allow Baehring to testify with respect to the lack of causation, without giving plaintiff a full opportunity to respond. ... Plaintiff's motion for leave to serve the late supplemental expert witness response with respect to the testimony of Dr. Holsapple is granted.

Section 3101(d)(1) governs expert disclosure; a belated disclosure does not warrant preclusion when the delay is not willful and causes no prejudice.

United Medicine & Rehabilitation P.C. v. Yakobashvili · filed 2025-12-04(d)(1)

Supreme Court providently exercised its discretion in denying defendants' motion ( see CPLR 3101[d][1]; Rivera v Montefiore Med. Ctr. , 28 NY3d 999, 1001-1002 [2016]) and finding that plaintiffs' expert disclosure filing was not untimely ( see Louise v Hampton Jitney, Inc. , 193 AD3d 514, 514 [1st Dept 2021]). The record does not show that the delay in plaintiffs' expert disclosure was due to willful noncompliance or that defendants were prejudiced by the belated disclosure, particularly given that defendants were on notice that plaintiffs intended to engage an economist such as a CPA as an expert witness ( see Martin v Triborough Bridge & Tunnel Auth ., 73 AD3d 481, 482 [1st Dept 2010], lv denied 15 NY3d 713 [2010]; see also St. Hilaire v White , 305 AD2d 209, 210 [1st Dept 2003]).

Section 3101(d)(1)'s expert disclosure requirements do not bar a recently supplied hospital record when no expert from that hospital testifies and the treated conditions are not new.

Trosty v. Mendon Leasing Corp. · filed 1996-11-04(d)(1)

The medical exchange rule is inapplicable here because no experts from Methodist Hospital testified on behalf of the plaintiff, and the conditions for which she was hospitalized were not new, but rather were related to the subject accident (see, Uniform Rules for Trial Cts [22 NYCRR] § 202.17; CPLR 3101 [d] [1]; Shehata v Sushiden Am., 190 AD2d 620).

Section 3101(d) does not automatically require preclusion of a treating physician for lack of formal expert disclosure when the physician's records and reports were exchanged under CPLR § 3121 and 22 NYCRR § 202.17.

Doe v. Lenox Hill Hosp. · filed 2026-02-11(d)

Where treating physicians' records and reports have been exchanged pursuant to CPLR § 3121 and 22 NYCRR § 202.17, the absence of a formal CPLR § 3101(d) expert disclosure does not automatically [*8]require preclusion ( Gonzalez v 98 Mag Leasing Corp ., 95 NY2d 124, 129 [2000]). ... Accordingly, the court declines to impose categorical preclusion.

Preclusion of expert testimony for deficient disclosure is generally unwarranted without a willful failure to disclose and prejudice to the opposing party.

Kela Tennis, Inc. v. City of Mount Vernon · filed 2026-01-14(d)(1)(i)

Generally, preclusion is unwarranted without evidence of intentional or willful failure to disclose and a showing of prejudice by the party seeking preclusion" ( Mazzurco v Gordon , 173 AD3d at 1002; see Cruz v Gustitos , 51 AD3d 963, 964). Here, the court determined that there was no willfulness on the part of the City in connection with the allegedly deficient expert disclosure. Further, the City's expert disclosure was not so inadequate as to cause surprise or prejudice to the plaintiff ( see Casimir v Bar-Zvi , 36 AD3d 578, 579; Gagliardotto v Huntington Hosp. , 25 AD3d 758, 758-759). Under these circumstances, the court should not have precluded the City's expert from testifying ( see Burbige v Siben & Ferber , 115 AD3d 632, 633; Shopsin v Siben & Siben , 289 AD2d 220, 221).

Section 3101(d)(1) permits expert testimony when the expert's qualifications and testimony were disclosed before trial and the opposing party was neither surprised nor prejudiced.

Aurnou v. Craig · filed 1992-06-05(d)(1)

Although plaintiffs name did not appear on the list of expert witnesses exchanged prior to trial pursuant to CPLR 3101 (d) (1), the nature of plaintiffs qualifications as an expert and the substance of his testimony were disclosed at an examination before trial, and the court limited plaintiffs testimony to the scope of that prior examination. Thus, defendants were neither surprised nor prejudiced by such testimony.

Section 3101(d)(1)(i) requires pretrial disclosure sufficient to alert the opposing party to the substance of an expert witness’s testimony.

Petersen v. Owens · filed 1992-10-07(d)(1)(i)

The trial court also erred in refusing to allow plaintiff’s accident reconstruction expert to testify that, in his opinion, defendant’s vehicle was traveling at 60.1 miles per hour before defendant applied his brakes. Plaintiff’s pretrial statement that the witness would testify that defendant’s vehicle was traveling in excess of 56 miles per hour was sufficient to alert defendant to the substance of the expert’s testimony (see, CPLR 3101 [d] [1] [i]; Matter of Love Canal Actions, 161 AD2d 1169, modfg 145 Misc 2d 1076).

Section 3101(d)(1)(i) governs disclosure of expert witness information and the consequences of belated disclosure.

Gilliam v. City of New York · filed 1992-11-30(d)(1)(i)

The appellant’s applications for a mistrial or preclusion of expert testimony following the plaintiff’s belated engagement of a medical expert witness were properly denied (see, CPLR 3101 [d] [i]; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C310L29A, at 47).

Section 3101(d)(1)(i) requires parties to identify expert witnesses and provide the required disclosure, subject to good cause for noncompliance.

Hudson v. Manhattan & Bronx Surface Transit Operating Authority · filed 1992-12-10(d)(1)(i)

We agree with the IAS Court that the failure of defendants Manhattan and Bronx Surface Transit Operating Authority and Vasquez to retain an expert medical witness until the eve of trial was the result of their failure to prepare for trial, and not a response to plaintiff’s disclosure pursuant to CPLR 3101. Under these circumstances, where defendants did not establish "good cause” for failing to identify the expert and provide disclosure as mandated by CPLR 3101 (d) (1) (i), it cannot be said that the trial court’s decision to preclude defendants’ expert testimony was an abuse of discretion.

Section 3101(d) permits adding an expert witness when good cause is shown.

Carringi v. International Paper Co. · filed 1992-12-17(d)

CPLR 3101 (d) authorizes the relief requested by plaintiff "for good cause shown” .

Section 3101(d)(1)(i) governs a party’s response to a request for information about its expert witness.

Bartholomew v. Lefrak · filed 1992-12-21(d)(1)(i)

We reject the appellants’ contention that the plaintiff failed to properly respond to their request for information on the plaintiff’s expert witness (see, CPLR 3101 [d] [1] [i]).

Section 3101(d)(1)(i) governs disclosure of expert witnesses and permits a party to seek permission to retain an expert and introduce that expert’s trial testimony.

Haskell v. Carlson · filed 1992-12-30(d)(1)(i)

The court abused its discretion in denying defendant Hebner’s motion pursuant to CPLR 3101 (d) (1) (i) for permission to retain an accident reconstruction expert and to introduce that testimony at trial.

Section 3101(d)(1)(i) requires advance disclosure of an expert witness's status, expertise, and proposed testimony.

Baldwin v. Degenhardt · filed 1993-01-07(d)(1)(i)

While there was no evidence that plaintiffs omission was intentional or deliberate (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3101:29A, at 47), in this case we find no abuse of the court’s discretion.

Section 3101(d) permits preclusion of an expert witness when the witness was not timely disclosed without good cause.

Lasek v. Nachtigall · filed 1993-01-11(d)

The plaintiff failed to show good cause why he did not disclose the fact that he retained an expert witness two weeks prior to trial until after opening statements had been made and the first witness had been called to testify. Under such circumstances, the trial court properly precluded the plaintiff’s expert from testifying at trial (see, Corning v Carlin, 178 AD2d 576).

Section 3101(d)(1)(i) requires reasonable detail about an expert’s qualifications, expected testimony, and grounds for the expert’s opinions.

Chapman v. State · filed 1993-01-28(d)(1)(i)

In our view, claimants failed to comply with the requirement of CPLR 3101 (d) (1) (i) that a party disclose in reasonable detail an expert’s qualifications, the facts and opinions on which the expert is expected to testify at trial and the grounds therefor (see, Brossoit v O’Brien, 169 AD2d 1019, 1020-1021; see also, Jasopersaud v Tao Gyoun Rho, 169 AD2d 184).

Section 3101(d)(1)(i) permits expert testimony after good cause excuses noncompliance with its disclosure provisions.

Benedict v. Seasille Equities Corp. · filed 1993-02-01(d)(1)(i)

This testimony, as the trial court found, "came as a surprise” and constituted "good cause” for the exercise of its discretion under CPLR 3101 (d) (1) (i) to the permit expert testimony on the issue (see, Simpson v Bellew, 161 AD2d 693).

Section 3101(d)(1) requires parties to disclose expert witnesses and certain expert information before trial.

Godfrey v. Dunn · filed 1993-02-04(d)(1)

Although defendant had not complied with the requirements of CPLR 3101 (d) (1) requiring disclosure of a party’s expert witness and certain expert information prior to trial, plaintiff also violated the provision because plaintiff first stated that no experts had been retained and it was not until the February 19, 1991 report received February 21, 1991 that defendant was first informed of the opinion by plaintiff’s surgeon that the ventral hernia was caused by the accident.

Section 3101(d)(1)(i) requires disclosure of the subject matter on which an expert is expected to testify in a medical malpractice action, but not the expert's identity, and gives the court discretion to make a just order for good cause shown when disclosure is not timely.

Putchlawski v. Diaz · filed 1993-04-22(d)(1)(i)

CPLR 3101 (d) (1) (i), which, in medical malpractice actions, requires disclosure of the subject matter on which an expert is expected to testify, but not his or her identity, also gives the court discretion "for good cause shown” to "make whatever order may be just” in the event of noncompliance. Such discretion was properly exercised here under circumstances showing that the noncompliance was not calculated to put plaintiff at an unfair disadvantage (see, ibid.).

Section 3101(d) requires disclosure of an expert's subject matter, opinions, qualifications, and grounds, while permitting examination of another party's expert only upon special circumstances.

Dwight B. v. Board of Education of City of Newburgh · filed 1993-05-03(d)

CPLR 3101 (d) (1) (i) provides for disclosure of the identity of expert witnesses, but specifically exempts this requirement in cases of medical malpractice. The section does mandate, in all cases, disclosure of the subject matter on which the expert is expected to testify, the substance of the facts and opinions on which the expert is expected to testify, the qualifications of the expert, and the grounds for his or her opinion. By service of a "Further Supplemental Response to Expert Information”, dated January 14, 1993, counsel for the defendant physician has complied with this section.

Section 3101(d) requires disclosure of an expert witness's credentials and expected testimony, and disregarding those requirements can justify precluding the testimony.

Vicinanzo v. Vicinanzo · filed 1993-05-20(d)

Moreover, defendant proffered no explanation whatsoever for his failure to disclose the credentials and expected testimony of his witness during the brief period after he was hired, but before he was called to the stand. The requirements of CPLR 3101 (d) having been blatantly disregarded, Supreme Court was fully justified in precluding the testimony (see, Corning v Carlin, 178 AD2d 576, 577; Zarrelli v Littaur Hosp., 176 AD2d 1181, 1181-1182).

Section 3101(d)(1)(i) requires a party to disclose an expected expert witness’s identity and subject matter only upon request.

Collins v. Greater New York Savings Bank · filed 1993-06-01(d)(1)(i)

The record is devoid of any request by the plaintiff pursuant to CPLR 3101. Thus, the defendant had no duty to supply the plaintiff with its expert’s identity and the subject matter of the expert’s testimony.

Section 3101(d)(1)(i) sets no fixed deadline for disclosing expert witness information; late disclosure warrants preclusion only upon a showing of willful nondisclosure and prejudice.

Aversa v. Taubes · filed 1993-06-07(d)(1)(i)

CPLR 3101 (d) (1) (i) does not require a party to respond to a demand for expert witness information "at any specific time nor does it mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute”, unless there is evidence of intentional or willful failure to disclose and a showing of prejudice by the opposing party (Lillis v D’Souza, 174 AD2d 976; Saar v Brown & Odabashian, 139 Misc 2d 328, 329).

Section 3101(d)(1)(i) requires disclosure of information about an expert witness before trial.

Spreer v. Whitestone Savings, F.A. · filed 1993-06-07(d)(1)(i)

Since the case had not been placed on the court’s trial calendar and more discovery was to take place, and given the lack of prejudice to the plaintiff, the court erred in precluding the appellant from adducing expert testimony at trial for failure to respond to the plaintiff’s request to disclose information about its expert witness (see, CPLR 3101 [d] [1] [i]; cf. Corning v Carlin, 178 AD2d 576; see also, Aversa v Taubes, 194 AD2d 580 [decided herewith]; Lillis v D’Souza, 174 AD2d 976).

Section 3101(d)(1)(iii) permits an expert's deposition to be limited to factual observations under special circumstances.

Gorman, Naim & Musa v. ABJ Fire Protection, Inc. · filed 1993-07-16(d)(1)(iii)

Supreme Court’s order directing a deposition of plaintiffs’-third-party defendants’ expert limited to his factual observations was not an abuse of discretion under the special circumstances existing here (see, CPLR 3101 [d] [1] [iii]; Rosario v General Motors Corp., 148 AD2d 108; Morrison v Ellis, 91 AD2d 1172; see also, Krygier v Airweld, Inc., 176 AD2d 700).

Section 3101(d)(1)(i) does not shield an examining physician’s identity and report when the physician is also used as an expert in a medical malpractice wrongful death case.

Soave v. Aides At Home, Inc. · filed 1993-04-07(d)(1)(i)

CPLR 3101 (d) (1) (i) was intended to eliminate "the perceived problem of the exertion of direct or indirect pressure by some physicians to discourage their colleagues from giving expert testimony against them” (Rubinstein v Columbia Presbyt. Med. Ctr., 139 Misc 2d 349, 352; Jasopersaud v Rho, 169 AD2d 184 [2d Dept 1991]) and not as a shield against the appropriate disclosure of plaintiffs examining physician and accompanying report. In short, at least in medical malpractice wrongful death cases, it is the opinion of this court that plaintiff’s simultaneous use of an examining physician as an expert takes him outside the intended scope of CPLR 3101 (d) (1) (i).

Section 3101(d)(1)(i) permits expert testimony that deviates from an expert witness statement when the opposing party was not deliberately misled and has not shown prejudice.

Citron v. Northern Dutchess Hospital · filed 1993-11-10(d)(1)(i)

Similarly, Supreme Court did not abuse its discretion in permitting Siegel to testify in support of plaintiff’s theory that defendant was liable for failing to have blood products available or making reasonable efforts to obtain them. Although the testimony deviated from the expert witness statement, defendant was not deliberately deceived or misled by plaintiff’s expert witness report (cf., Parsons v City of New York, 175 AD2d 783). Further, in these circumstances, where defendant was provided with ample time to obtain additional experts, there has been no demonstration of prejudice (see, CPLR 3101 [d] [1] [i]; Putchlawski v Diaz, 192 AD2d 444; Lillis v D’Souza, 174 AD2d 976, lv denied 78 NY2d 858; McDougald v Garber, 135 AD2d 80, 94-95, mod on other grounds 73 NY2d 246; cf., Washington v 550 W. 158th St. Realty Corp., 137 AD2d 426).

Late disclosure of expert witness information may warrant a monetary sanction instead of preclusion when the failure was not willful and caused no prejudice.

McDermott v. Alvey, Inc. · filed 1993-11-16(d)(1)(i)

While other similar delays in disclosure have resulted in the preclusion of expert testimony (Hudson v Manhattan & Bronx Surface Tr. Operating Auth., 188 AD2d 355; Corning v Carlin, 178 AD2d 576), we find there is no proof of intentional or willful failure to disclose, on plaintiff’s part, and an absence of prejudice to the parties opposing the testimony (see, Lillis v D’Souza, 174 AD2d 976, lv denied 78 NY2d 858). Under these circumstances, we find plaintiff’s counsel’s payment of a sum of $1,500 for its lack of diligence more appropriate than an order of preclusion (see, Aversa v Taubes, 194 AD2d 580).

Section 3101(d)(1)(i) requires disclosure of expected trial experts upon demand; an unjustified delay until the eve of trial can warrant preclusion of their testimony.

Vigilant Insurance v. Barnes · filed 1993-12-06(d)(1)(i)

The statute further provides, in essence, that upon a showing of good cause, a party’s retention of an expert near to the time of trial need not result in preclusion of the expert’s testimony. In the instant case, the plaintiff failed to provide an adequate explanation for its failure to disclose the names of three expert witnesses until the eve of trial and otherwise failed to make a showing of good cause for its delay.

Section 3101(d)(1)(i) requires expert information upon request and allows the court to set a disclosure deadline and preclude testimony from an expert who is not disclosed.

Ferris v. Coleman Co. · filed 1994-02-07(d)(1)(i)

Accordingly, the court directs defendants to select their experts and supply the information required by CPLR 3101 (d) within 40 days from the date upon which a copy of this order is served upon defendants’ counsel by plaintiffs’ counsel. In the event any defendant shall fail to comply with the foregoing, said defendant shall be precluded from producing at the trial of this action any expert witness not divulged in compliance with CPLR 3101 (d).

Section 3101(d)(1) requires expert witness disclosure that adequately describes the claim; a misleading response can warrant preclusion of the expert’s testimony.

Hageman v. Jacobson · filed 1994-03-01(d)(1)

On the other hand, plaintiffs’ response to St. Luke’s request for expert testimony which incorporated by reference their earlier response addressed to Dr. Jacobson, was so misleading concerning plaintiffs’ claim that St. Luke’s failed to diagnose a condition allegedly suffered by Suzanne when she was admitted as to be wholly inadequate under the statute and to warrant the trial court’s preclusion of the expert’s testimony and non-submission of the issue to the jury as against St. Luke’s (see, Parsons v City of New York, supra).

Section 3101(d)(1)(i) requires a response to a demand for expert information to disclose in reasonable detail the subject matter on which the expert is expected to testify.

Laukaitis v. Ski Stop, Inc. · filed 1994-03-21(d)(1)(i)

Accordingly, the plaintiff is directed to serve further bills of particulars with respect to item numbered 10 or face preclusion, and is also directed to serve a further response to the defendants’ demand for expert information in compliance with CPLR 3101 (d).

Section 3101(d)(1)(i) requires disclosure of the substance of an expert witness’s anticipated testimony in reasonable detail.

Nedell v. St. George's Golf & Country Club, Inc. · filed 1994-04-14(d)(1)(i)

Plaintiff’s response to defendant’s demand for expert witness testimony disclosed in "reasonable detail” the substance of the anticipated testimony from Dr. Alan Rosenthal, and was therefore in compliance with CPLR 3101 (d) (1) (i) (see, Krygier v Airweld, Inc., 176 AD2d 700).

Section 3101(d)(1)(i) permits preclusion of a late-disclosed expert when the party fails to show good cause for retaining the expert shortly before trial.

Quinn v. Artcraft Construction, Inc. · filed 1994-04-18(d)(1)(i)

In this case, the plaintiff failed to show good cause why she did not retain an expert until a few days before trial. Under such circumstances, the trial court’s preclusion order was proper on this second ground (see, Corning v Carlin, 178 AD2d 576).

Section 3101(d)(1)(i) does not require expert disclosure 30 days before trial, but a court may preclude expert testimony when disclosure is delayed until the eve of trial without good cause or a showing that the delay was unintentional.

Cramer v. Spada · filed 1994-04-21(d)(1)(i)

While CPLR 3101 (d) (1) (i) does not require that the disclosure of the expert’s name be accomplished 30 days prior to trial, we find that Supreme Court’s issuance of a preclusion order was not an abuse of discretion because, although plaintiff had an opportunity to do so, he failed to show that he did not intentionally withhold disclosure (see, Marra v Hensonville Frozen Food Lockers, 189 AD2d 1004, 1006) or provide any good cause for not serving his notice until the eve of trial (see, Corning v Carlin, 178 AD2d 576, 577; Zarrelli v Littauer Hosp., 176 AD2d 1181, 1182).

Section 3101(d)(1)(i) permits a party to withhold an expert’s identity before trial; a court can review an unredacted affirmation in camera when deciding a summary judgment motion.

McCarty v. Community Hospital of Glen Cove · filed 1994-04-18(d)(1)(i)

The court should not have required the plaintiff to reveal the name of her expert to all parties before it would fully consider the merits of her opposition to the defendant’s motion. In camera review preserves the confidentiality of the expert’s identity, consistent with the philosophy underlying CPLR 3101 (d) (1) (i), while permitting a plaintiff to meet his or her burden of demonstrating the existence of triable issues of fact (see, Zuck v Sierp, 169 AD2d 717, 718; Graves v Rochester Gen. Hosp., 135 AD2d 1130).

Section 3101(d) permits a court to preclude an expert’s opinion testimony when the party fails to disclose the substance and grounds of the opinion, impairing the other party’s preparation.

In re Richard S. · filed 1994-10-17(d)

In addition, it was not improper for the Supreme Court to limit the appellant’s experts to offering their observations, thereby precluding them from testifying to their opinions. ... Because the Commissioner’s ability to prepare for the hearing was impaired, the Supreme Court did not improvidently exercise its discretion by precluding the appellant’s experts from oifering their opinions (see, Corning v Carlin, 178 AD2d 576).

Courts have broad discretion to admit expert testimony despite imperfect notice under subsection (d)(1)(i) when the nondisclosure was not intentional or willful and caused no surprise or prejudice.

Peck v. Tired Iron Transport, Inc. · filed 1994-11-16(d)(1)(i)

Although plaintiffs did not strictly comply with the notice requirements of CPLR 3101 (d) (1) (i), the court has broad discretionary powers in applying that statute (see, Marra v Hensonville Frozen Food Lockers, 189 AD2d 1004, 1005). ... Because there is no evidence of intentional or willful nondisclosure, the expert testimony offered no surprises and the party opposing that testimony did not demonstrate any prejudice, we conclude that the court did not abuse its discretion in allowing that witness to testify (see, Lillis v D’Souza, 174 AD2d 976, lv denied 78 NY2d 858; see also, Haskell v Carlson, 188 AD2d 1087).

Section 3101(d)(1)(i) requires an expert disclosure to explain the grounds for the expert’s opinions in reasonable detail; skeletal explanations and incomprehensible charts do not suffice.

Spratt v. Rochelson · filed 1994-12-22(d)(1)(i)

While it appears at bar that plaintiff’s submissions adequately reveal the subject matter and the substance of the facts and opinions upon which Dr. Seplaki will testify, as well as his qualifications, a more detailed summary of the grounds of his opinions is required. Specifically, defendant is entitled to a further explanation as to how the alleged losses were computed and the manner in which the losses were converted to present value (see, Brossoit v OBrien, 169 AD2d 1019 [3d Dept 1991]). The submission here of incomprehensible charts and graphs accompanied by a skeletal explanation will not suffice.

Section 3101(d)(1)(i) does not preclude an expert’s testimony merely because a party failed to respond to an expert witness information demand, absent a court order.

Roundpoint v. V.N.A., Inc. · filed 1995-01-05(d)(1)(i)

We further note that the mere fact that plaintiffs have allegedly not responded to defendant’s demand for expert witness information does not, in the absence of an order, preclude Camens’ testimony (see, CPLR 3101 [d] [1] [i]).

Section 3101(d) requires a party, upon request, to disclose its intended trial experts and information about their expected testimony.

Germe v. City of New York · filed 1995-01-17(d)

Pursuant to plaintiffs request, defendants were obligated to furnish the names of any expert witnesses defendants intended to call at trial as well as information concerning their potential testimony (CPLR 3101 [d]) and were also obligated to inform plaintiff as to the existence of any witnesses able to provide information material and necessary for a "judicious resolution of th[e] controversy” (Hoffman v Ro-San Manor, 73 AD2d 207, 211).

Section 3101(d)(1)(i) permits preclusion of expert testimony when a party fails to respond accurately to requests for expert information and cannot show good cause.

Mercado v. Trabman · filed 1995-03-21(d)(1)(i)

In the circumstances present, and where plaintiff did not establish "good cause” for failing to accurately respond to defendant’s repeated requests for information regarding the anticipated testimony of plaintiff’s experts (see, CPLR 3101 [d] [1] [i]), issuance of a preclusion order was warranted (see, Hudson v Manhattan & Bronx Surface Tr. Operating Auth., 188 AD2d 355; Corning v Carlin, 178 AD2d 576).

Section 3101(d)(1)(i) governs expert witness disclosure, and a trial court may permit the experts to testify without abusing its discretion.

Smerka v. Niagara Mohawk Power Corp. · filed 1994-07-15(d)(1)(i)

Supreme Court did not abuse its discretion in permitting plaintiffs’ experts to testify (see, CPLR 3101 [d] [1] [i]; Lillis v D’Souza, 174 AD2d 976, lv denied 78 NY2d 858).

Section 3101(d)(1)(i) permits a party opposing summary judgment to submit an expert affidavit with the expert’s name redacted when an unredacted version is provided to the court in camera.

Carrasquillo v. Rosencrans · filed 1994-10-03(d)(1)(i)

The name of the plaintiffs’ expert was redacted from his affidavit, and an unredacted version was submitted to the Supreme Court in camera. The Supreme Court properly cited the affidavit in holding that issues of fact existed which mandated the denial of the defendants’ motion. Contrary to the defendants’ contention, the Supreme Court did not err in following this procedure, as it is wholly consistent with the logic underlying CPLR 3101 (d) (1) (i) (see, McCarty v Community Hosp., 203 AD2d 432; see also, Wagner v Kingston Hosp., 182 AD2d 616; Zuck v Sierp, 169 AD2d 717).

Section 3101(d)(1)(i) allows a party to request pretrial disclosure of the substance of an expert’s proposed testimony.

Victoria C. v. Higinio C. · filed 1995-06-22(d)(1)(i)

Respondents’ application for an order directing that any psychological examination of petitioner conducted for purposes of this litigation be preserved by videotaping is denied. Respondents’ rights to present a defense will be adequately protected by their right to request pretrial disclosure as to the substance of the expert’s proposed testimony (CPLR 3101 [d] [1] [i]), and to request an adjournment to consult with and engage a rebuttal expert witness (see, Family Ct Act § 836).

Section 3101(d)(1)(i) does not require preclusion of an expert when the disclosure response is not misleading and causes no prejudice or surprise.

Beard v. Brunswick Hospital Center, Inc. · filed 1995-10-16(d)(1)(i)

Finally, the trial court properly rejected the plaintiffs motion for preclusion of the testimony of the defendants’ expert because of the alleged inadequacy of the defendants’ response to the plaintiffs request pursuant to CPLR 3101 (d) (1) (i) for information about the defendants’ expert.

In a medical malpractice action, a party may withhold an expert’s identity but must disclose the other specified expert information upon a proper demand.

Howarth v. O'Daly · filed 1995-11-06(d)

CPLR 3101 (d) makes plain that a party in a medical malpractice action "may omit” the name or identity of his expert witness in responding to a CPLR 3101 request but that, upon a proper demand, he or she must nevertheless disclose all other information specified under the statute: the subject matter of the testimony, the substance of the facts and opinions underlying the testimony, the expert’s qualifications, and a summary of the grounds for the opinion (see, e.g., Jasopersaud v Tao Gyoun Rho, 169 AD2d 184).

Section 3101(d) does not require advance disclosure of a witness’s identity when the witness will testify only about personal observations.

Kaplan v. Sparks · filed 1995-11-15(d)

The testimony of Trippett would have related only to what he had personally observed and, therefore, advance disclosure of his identity was not required (see, CPLR 3101 [d]).

Section 3101(d) sets the minimum disclosure required for expert witnesses.

Foley v. American Independent Paper Mills Supply Co. · filed 1995-12-04(d)

The plaintiff’s disclosure met the minimum statutory requirement for disclosure set forth in CPLR 3101 (d).

Section 3101 requires disclosure of the names and addresses of witnesses to circumstances leading to an assault, even if they did not witness the assault itself.

Gomez v. New York City Housing Authority · filed 1995-12-21

There is no dispute that plaintiff was entitled to disclosure of the names and addresses of Ms. Mallette and Ms. Smith ... and we reject defendant’s narrow construction of the disclosure requirement whereby it argues that the witnesses were not "occurrence” witnesses because they did not view the actual rape.

Section 3101(d)(1)(i) requires an expert disclosure to describe in reasonable detail the subject matter on which the expert is expected to testify.

Laukaitis v. Ski Stop, Inc. · filed 1996-01-22(d)(1)(i)

Similarly, the plaintiffs second response to the defendants’ demand for expert information discloses "in reasonable detail the subject matter on which [the] expert is expected to testify” (CPLR 3101 [d] [1] [i]).

A court has discretion to deny preclusion of expert testimony despite a party’s untimely compliance with an order for expert witness information.

Tamborino v. Burakoff · filed 1996-02-20(d)

The court would have been well within its discretion in granting the defendant’s motion to preclude the plaintiff from offering expert testimony on the ground that the plaintiff, without good cause, failed to timely comply with the court’s discovery order (see, e.g., Grassel v Albany Med. Ctr., 223 AD2d 803). We also note that the expert information provided by the plaintiff was barely adequate (see, Carroll v Nunez, 146 Misc 2d 422). However, we cannot conclude that the trial court improvidently exercised its discretion in denying the defendant’s motion to preclude.

Section 3101(d)(1)(i) requires an expert witness notice to state the substance of each expert’s opinions and summarize their grounds; a court may allow a good-faith deficiency to be corrected rather than exclude the testimony.

Chapman v. State · filed 1996-05-23(d)(1)(i)

As for the remaining witnesses, even though claimants’ notice is deficient in that it does not contain the substance of their opinions and a summary of the grounds for each opinion, the exclusion of their testimony would be too draconian considering claimants’ pro se status and apparent good-faith effort to provide a sufficient response.

Section 3101(d)(1)(i) requires disclosure in reasonable detail of the subject matter on which an expert is expected to testify; an expert may be precluded when a party fails to show good cause for inadequate disclosure.

Rossi v. Matkovic · filed 1996-05-28(d)(1)(i)

The Supreme Court providently exercised its discretion in precluding, after the plaintiff’s opening statement, the use of an expert due to the plaintiff’s inability to show good cause for her failure to disclose in reasonable detail the subject matter on which the expert was expected to testify (see, CPLR 3101 [d] [1] [i]).

Section 3101(d)(1)(iii) permits limited depositions of opposing experts when special circumstances exist, including when their investigation or testing altered evidence before the other side could examine it.

The Hartford v. Black & Decker (U.S.) Inc. · filed 1995-11-15(d)(1)(iii)

In our view, Black & Decker established that special circumstances exist to entitle it to limited depositions of plaintiffs’ experts.

Section 3101(d)(1)(i) permits parties in medical malpractice actions to omit medical experts’ names during pretrial disclosure, but does not apply at jury selection.

Draves v. Chua · filed 1996-04-30(d)(1)(i)

Jury selection, however, is not a pretrial stage, but rather is the commencement of the jury trial itself (see, CPL 1.20 [11]). As such, the provisions of CPLR 3101 (d) (1) (i) are inapplicable.

Section 3101(d)(1)(i) requires timely disclosure of an expert’s name; a seven-year delay without an adequate explanation can support precluding that expert’s testimony.

Lyall v. City of New York · filed 1996-06-17(d)(1)(i)

The defendant failed to timely disclose the name of its expert as required by CPLR 3101 (d) (1) (i) and failed to provide an adequate explanation for this failure until the eve of trial, seven years after the plaintiffs’ demand.

Section 3101(d)(1)(i) permits an undisclosed expert to testify when the opposing party anticipated the substance of the testimony and suffered no real surprise or prejudice.

Stafford v. Molinoff · filed 1996-06-24(d)(1)(i)

The trial court properly exercised its discretion in allowing the nurse to testify as an expert on Halfen’s behalf (see, CPLR 3101 [d] [1] [i]; Lesser v Lacker, 203 AD2d 181; Marra v Hensonville Frozen Food Lockers, 189 AD2d 1004). ... Under these* circumstances, it cannot be said that the plaintiff suffered any real surprise or prejudice as a result of Halfen’s failure to disclose that one of his experts would be a nurse.

Section 3101(d)(1)(i) permits a party in a medical malpractice action to withhold an expert’s name but requires disclosure of the expert’s professional qualifications.

Morris v. Clements · filed 1996-06-27(d)(1)(i)

Pursuant to CPLR 3101 (d) (1) (i) (as amended by L 1985, ch 294, § 4), a party responding to a request for information about expert witnesses in the context of a medical malpractice action, "may omit the names of medical * * * experts but shall be required to disclose all other information concerning such experts”, including his or her professional qualifications.

Section 3101(d)(1)’s expert witness disclosure requirement does not apply when a witness testifies about facts and her expertise is not elicited.

In re Patrick H. · filed 1996-07-11(d)(1)

Respondent’s sole objection on this appeal is based on her contention that her due process rights were impaired in that petitioner did not comply with CPLR 3101 (d) (1) in failing to disclose that an expert would be called by petitioner, despite respondent’s demand for names of expert witnesses and the substance of their testimony. We reject this contention. The record discloses that Patricia Novinsky, a therapist for family services, was called but her testimony was that of a fact witness regarding respondent’s participation in the sexual abusers’ program. We find no prejudice to respondent by her testimony. Novinsky’s expertise was not elicited nor was it relevant to the proceedings to establish the basis for Family Court’s determination.

Section 3101(d)(1)(i) does not require disclosure of subsequent treating physicians as retained experts when they testify as witnesses to facts they perceived.

Nesselbush v. Lockport Energy Associates, L.P. · filed 1996-08-27(d)(1)(i)

Thus, I conclude that subsequent treating physicians need not be disclosed as experts retained to testify at trial under CPLR 3101 (d) (1) (i) to the extent that they will be testifying at trial, if at all, as "percipient fact witnesses” (Sipes v United States, supra, at 61).

Section 3101(d)(1)(i) requires notice of intended expert evidence; failure to give notice can justify excluding the expert testimony.

Krute v. Mosca · filed 1996-12-05(d)(1)(i)

In contrast, we conclude that plaintiffs violated CPLR 3101 (d) (1) (i) by failing to provide defendants with notice that they intended to offer expert evidence that the videotape had been "edited and altered”, and Supreme Court properly disallowed plaintiffs’ proffered expert testimony on that basis (see, Ingleston v Francis, 206 AD2d 745, 745-746).