N.Y. C.P.L.R. § 3101

CPLR 3101(d)(1) requires disclosure of an expert witness upon demand; testimony withheld until trial may be precluded when the delay lacks a reasonable explanation and the nondisclosure appears deliberate.

Kaprelian v. Kaprelian · filed 1997-02-03(d)(1)

Although the plaintiff demanded a statement pursuant to CPLR 3101 (d) (1), the defendant never filed a statement nor did she inform the plaintiff until after the trial began that she would present an actuary who would challenge the plaintiffs valuation of his annuity. ... Therefore, the testimony of the defendant’s actuary that the plaintiff’s annuity was worth $67,819 should have been precluded and the judgment must be modified to reflect the plaintiff’s value of $34,306.

Section 3101(d)(1)(i) requires an expert disclosure to describe in reasonable detail the subject matter of the testimony, the substance of the expert’s facts and opinions, and a summary of their grounds.

Haase v. Cole · filed 1997-02-07(d)(1)(i)

The disclosure statement of defendant’s expert properly disclosed in reasonable detail the subject matter of the testimony, the substance of the facts and opinions and a summary of the grounds for the expert’s testimony (see, CPLR 3101 [d] [1] [i]).

A party seeking more detail about an opposing expert’s qualifications should request it or move to compel further disclosure before seeking to preclude the expert’s testimony.

McClain v. Lockport Memorial Hospital · filed 1997-02-07(h)

We reject plaintiff’s argument that the testimony of the expert retained by Lockport Memorial Hospital (defendant) should have been precluded because defendant failed to provide sufficient details concerning the expert’s qualifications.

CPLR 3101 (d) (1) (i) permits preclusion of expert testimony when required expert witness information was not provided.

Joseph v. Roger Morris Apartments Corp. · filed 1997-02-20(d)(1)(i)

We agree with defendant that the trial court improperly precluded the testimony of defendant’s expert radiologist on the basis of 22 NYCRR 202.17, but nevertheless affirm because preclusion would have been proper on the alternative basis of CPLR 3101 (d) (1) (i) (see, Lyall v City of New York, 228 AD2d 566, 567-568, lv denied 88 NY2d 816; Vigilant Ins. Co. v Barnes, 199 AD2d 257).

Section 3101(d) requires timely disclosure of expert witnesses and permits a court to preclude expert testimony when a party fails to comply without good cause.

Tleige v. Pediatrics · filed 1997-03-13(d)

We also find that precluding plaintiff from presenting expert testimony due to his failure to respond to defendants’ demands was not improper. CPLR 3101 (d) requires timely disclosure of expert witnesses to enable the parties to adequately prepare for trial. Where, as here, a party fails to comply with expert disclosure without showing good cause, the trial court has the authority to preclude said party from offering expert testimony, particularly in a case such as this involving medical malpractice with its heightened reliance on expert testimony (see, Cramer v Spada, 203 AD2d 739, 740, lv denied 84 NY2d 809; Bauernfeind v Albany Med. Ctr. Hosp., 195 AD2d 819, 820, lv dismissed, lv denied 82 NY2d 885).

Section 3101(d)(1)(i) requires an expert disclosure to describe the subject matter of expected testimony in reasonable detail.

Weiss v. Berardi · filed 1997-03-31(d)(1)(i)

The plaintiffs’ response to the appellants’ demand for expert information disclosed "in reasonable detail the subject matter on which [the] expert is expected to testify” (CPLR 3101 [d] [1] [i]).

Preclusion of expert testimony for noncompliance with the disclosure rule is discretionary when the opposing party could have obtained the testimony’s substance from records made available before trial.

Schwartz v. Tab Operating Co. · filed 1997-05-15(d)(1)(i)

The trial court’s ruling not to preclude the testimony of plaintiff’s expert for noncompliance with CPLR 3101 (d) (1) (i) was a proper exercise of discretion (see, Lesser v Lacher, 203 AD2d 181), where such testimony was limited to what was contained in the expert’s records that defendants could have obtained well before trial, having been furnished with authorizations therefor.

Section 3101(d)(1)(i) permits expert testimony on an inadvertently omitted aspect of an expert notice when the opposing party was prepared to defend that claim.

Misel v. N.F.C. Cab Corp. · filed 1997-06-19(d)(1)(i)

Under these circumstances, we find that the IAS Court improvidently exercised its discretion in totally precluding, pursuant to CPLR 3101 (d) (1) (i), plaintiffs’ expert’s testimony concerning whether the truck was properly positioned and the requirements for safely positioning trucks at such sites merely because that specific aspect of the claim was inadvertently omitted from the expert notice provided by plaintiff (see, Fuoco v County of Nassau, 223 AD2d 668; Lillis v D’Souza, 174 AD2d 976, lv denied 78 NY2d 858).

CPLR 3101 (d) does not require expert witness disclosure for testimony from a treating physician.

Wylie v. Consolidated Rail Corp. · filed 1996-07-12(d)

We reject the argument of plaintiff that the radiologist was not a treating physician and therefore could have testified only if he had been disclosed as an expert witness pursuant to CPLR 3101 (d), which, concededly, he was not.

Section 3101(d)(1)(i) protects the identity of a party’s expert in a medical malpractice case from pretrial disclosure.

Napierski v. Finn · filed 1996-07-25(d)(1)(i)

Granting plaintiff’s unorthodox request to withhold his expert’s affidavit unless necessary to meet his burden, under the circumstances of this case, was "an appropriate accommodation of the competing purposes of broad disclosure under CPLR 3121 (b) and protection of the expert’s identity under CPLR 3101 (d) (1) (i)” (Wagner v Kingston Hosp., 182 AD2d 616, 617).

CPLR 3101(d) permits a court to compel a response to a disclosure demand when the recipient has failed to respond timely without an adequate explanation.

Koonmen v. Town of Brookhaven · filed 1997-02-24(d)

Additionally, the Supreme Court should have granted that branch of the motion which was to compel the plaintiff to respond to the defendant’s demand pursuant to CPLR 3101 (d). The plaintiff failed to timely respond to the demand or provide an adequate explanation for his failure to do so, and almost three years have elapsed since the demand was made (see, Lyall v City of New York, 228 AD2d 566).

Depositing an opponent’s trial expert requires special circumstances; claims that the expert’s opinion is novel or lacks scientific support do not suffice.

Hallahan v. Ashland Chemical Co. · filed 1997-03-06(d)(1)(iii)

We perceive no such compelling circumstances in this case. Rather, we view the circumstances cited to by defendants in support of their effort to depose plaintiffs’ experts, i.e, that the experts’ opinions are novel, unorthodox and unsupported in published scientific literature or studies, as nothing but a thinly veiled claim that their theories of causation are bunk and should be exposed as such at the earliest possible juncture.

Section 3101(d)(1)(iii) permits depositions of experts who will testify at trial when special circumstances justify them.

Massachusetts Bay Insurance v. Stamm · filed 1997-03-11(d)(1)(iii)

Finally, appellants’ completion of their depositions of all of respondent’s experts and refusal to answer certain interrogatories as improper attempts to obtain expert discovery constitute special circumstances (CPLR 3101 [d] [1] [iii]), justifying the court’s directive permitting each side to depose the other’s experts who will be testifying at trial.

Section 3101(d)(1)(i)’s exception allowing medical experts to remain unidentified does not apply to a legal malpractice action based on an unprosecuted medical malpractice claim when the physicians face no financial exposure.

Boucher v. Williams · filed 1997-06-11(d)(1)(i)

It is ordered that the plaintiffs’ CPLR 3124 motion to compel Eugene Natale to serve and file a new expert witness disclosure pursuant to CPLR 3101 (d) (1) is granted; and it is further ordered that within 30 days of the date of this order, the defendant, Eugene V. Natale, shall provide the plaintiffs with a new expert witness disclosure statement in full compliance with CPLR 3101 (d) (1) (i) providing the identity of the defendants’ expert and annexing an unredacted copy of the curriculum vitae. ... Inasmuch as there is no risk of exposure to financial harm to such physician or physicians, the court finds that the perceived problem of the exertion of pressure to discourage a colleague from giving expert testimony against a defendant doctor which is the basis for the statutory exception is not present here.

An expert’s testimony need not precisely match the expert disclosure if the differences are not so inconsistent or misleading as to warrant preclusion or reversal.

Andaloro v. Town of Ramapo · filed 1997-08-25(d)(1)(i)

In this case, we find that the expert’s testimony, “while not following precisely the formulation of the [defendant’s] response [to the plaintiff’s demand for expert witness information], was not so inconsistent with the information and opinions contained therein, nor so misleading, as to warrant preclusion of the expert testimony or reversal” (Hageman v Jacobson, 202 AD2d 160, 161; see, Weiss v Berardi, 237 AD2d 596; Beard v Brunswick Hosp. Ctr., 220 AD2d 550; Citron v Northern Dutchess Hosp., 198 AD2d 618).

A party must disclose the substance of the facts and opinions on which an expert is expected to testify; a conclusory response does not satisfy that requirement.

Curatola v. Staten Island Medical Group · filed 1997-10-27(d)(1)(i)

CPLR 3101 (d) (1) (i) requires a party to disclose, among other information, “the substance of the facts and opinions on which each expert is expected to testify”. The conclusory statement in the plaintiffs’ supplemental response to Item 3 of the defendants’ demand for expert information failed to satisfy the statutory requirement (see, Chapman v State of New York, 189 AD2d 1075; Brossoit v O’Brien, 169 AD2d 1019).

Section 3101(d)(1)(i) requires disclosure of the substance of an expert’s expected facts and opinions and the expert’s qualifications, but an inadequate response does not necessarily warrant preclusion.

Herd v. Pawling · filed 1997-11-03(d)(1)(i)

We agree with the Supreme Court that the plaintiff’s response was deficient in failing to fully set forth the substance of the facts and opinions about which the witnesses Douglas Walcott and Nicholas Chapis are expected to testify, and in failing to provide the qualifications of Peter P. Muraski III as required by CPLR 3101 (d) (1) (i). However, preclusion was not warranted under the circumstances.

Section 3101(d)(1)(i) does not bar expert testimony from a treating physician who was not retained to give opinion testimony at trial.

Stark v. Semeran · filed 1997-11-19(d)(1)(i)

Because defendant doctor was plaintiffs treating physician, rather than an expert retained to give opinion testimony at trial, CPLR 3101 (d) (1) (i) does not bar the admission of his expert testimony (see, Rook v 60 Key Centre, 239 AD2d 926; Beck v Albany Med. Ctr. Hosp., 191 AD2d 854, 856; Nesselbush v Lockport Energy Assocs., 169 Misc 2d 742).

Section 3101(d)(1)(i) requires an expert witness notice to state the expert’s qualifications, the facts relied on, and the grounds for the expert’s conclusions; a court may preclude testimony when a party fails to justify late disclosure.

Douglass v. St. Joseph's Hospital · filed 1998-01-08(d)(1)(i)

We also note that the court’s ruling is independently justified based upon the substance of defendant’s notice of expert witness, which does not comport with the requirements of CPLR 3101 in that it did not contain the expert’s qualifications, ... nor did it detail the facts on which the expert relied or the grounds for her conclusions.

Section 3101(d)(1)(i) governs whether a party’s response to an expert disclosure demand is sufficient.

Shoemaker v. State · filed 1998-02-04(d)(1)(i)

Claimants’ response to defendant’s demand was sufficient to comply with CPLR 3101 (d) (1) (i) (see generally, Jasopersaud v Tao Gyoun Rho, 169 AD2d 184).

Section 3101(d) permits consideration of an expert affidavit when the disclosed responses identify the expert and describe the subjects of the expert’s testimony.

Pidgeon v. Metro-North Commuter Railroad · filed 1998-03-31(d)

Also meritless is defendant’s argument that the affidavit of plaintiffs expert should not have been considered at all since plaintiff failed to provide a proper response to defendant’s notice for discovery and inspection of expert witness information. Plaintiffs prior counsel provided defendant with CPLR 3101 (d) responses, attached to plaintiffs expert’s affidavit. In these responses, which were dated April 29, 1993, plaintiffs counsel identified the expert and contended that said expert would testify as to defendant’s failure to maintain the platform and stairs, its failure to inspect the Hastings train station and its failure to keep the roof and platform in a safe condition.

Section 3101(d)(1)(i) gives courts discretion to limit expert testimony after untimely disclosure while allowing testimony about a study disclosed well before trial.

Stevens v. Brown · filed 1998-04-29(d)(1)(i)

The court properly allowed the occupational therapist to testify as an expert solely concerning a job ready study of plaintiff that she had prepared and that had been disclosed to defendant more than six months before trial; that testimony did not violate the court’s ruling that plaintiff was barred from presenting the occupational therapist as a general expert witness based upon plaintiffs failure to make a timely disclosure.

Section 3101(d) expert disclosure must identify a claimed injury; admitting expert testimony about an undisclosed injury can prejudice the opposing party and warrant a new trial.

Holder v. Bowery Savings Bank, Inc. · filed 1998-05-26(d)

It is undisputed that the first mention of an arthritic condition came at trial, that both the bill of particulars and the plaintiff’s CPLR 3101 (d) expert disclosure were silent as to arthritis, and that the expert’s 1993 medical report was also silent as to arthritis. ... Under these circumstances, the defendant was prejudiced by the admission of the testimony and a new trial as to damages is therefore warranted (see, Ciriello v Virgues, 156 AD2d 417; see also, Smith v Plaza Transp. Ambulance Serv., 243 AD2d 555).

In a medical malpractice action, section 3101(d)(1)(i) permits a party to withhold an expert’s name even when the expert also examined the party and wrote a report.

Ryan v. Michelsen · filed 1997-07-31(d)(1)(i)

On appeal, plaintiff argues that the protection afforded the identity of expert witnesses in CPLR 3101 (d) was not lost merely because her expert witness was also her examining physician. We agree.

Section 3101(d) does not require disclosure of a medical expert’s identity merely because the expert lacks a license to practice medicine.

Silber v. Plainview Orthopedics · filed 1998-05-15(d)

In the absence of any authority to support defendants’ claim, the court must enforce CPLR 3101 (d) as written, and the identity of a medical expert need not be revealed. Plaintiffs’ witness is a medical witness and the substance of the testimony he will give is of a medical nature. To require that he hold a license to practice medicine would be to add a requirement to the statute which does not appear therein.

Section 3101(d)(1)(iii) permits disclosure from an expert and of inspection materials when special circumstances, such as delay and possible changes to the premises, warrant it.

Melendez v. Food Emporium, Inc. · filed 1997-10-02(d)(1)(iii)

... here, disclosure from the expert himself and of the materials related to his inspection is warranted by special circumstances (CPLR 3101 [d] [1] [iii]), namely, plaintiffs’ long delay, after their expert inspected the premises, in responding to third-party defendant’s demand for expert information and the possibility that changes in the building’s structure during the delay altered the conditions that allegedly caused the accident (see, Santos v Toodle Lou Rest. & Bar, 192 AD2d 418; Tedesco v Dry-Vac Sales, 203 AD2d 873).

Disclosure concerning treating physicians is governed by CPLR 3121 and 22 NYCRR 202.17, rather than the expert disclosure rule in CPLR 3101(d)(1).

McGee v. Family Care Services · filed 1998-01-06(d)(1)

We agree with that assessment, and would add that the motion could have been denied because disclosure with respect to treating physicians is governed by CPLR 3121 and 22 NYCRR 202.17, not CPLR 3101 (d) (1) (see, Rook v 60 Key Centre, 239 AD2d 926).

Section 3101(d)(1)(i) permits medical experts’ identities to remain undisclosed during pretrial discovery, but a party moving for summary judgment may not rely on redacted expert affirmations or affidavits.

Marano v. Mercy Hospital · filed 1998-03-30(d)(1)(i)

In short, we hold that a party moving for summary judgment may not rely upon redacted expert affirmations or affidavits, even with unredacted copies provided for in camera inspection, since to do so would violate the opposing party’s rights to fundamental fairness.

Section 3101(d)(1)(i) permits a court to deny further discovery of an expert’s qualifications when the information already provided adequately satisfies the disclosure requirement.

Vlassis v. Corines · filed 1998-10-05(d)(1)(i)

The court properly found that the information already provided regarding the expert’s qualifications adequately complied with the statutory requirements for disclosure (see, CPLR 3101 [d] [1] [i]; Jasopersaud v Tao Gyoun Rho, 169 AD2d 184).

Section 3101(d)(1)(i) requires disclosure of the subject matter and substance of an expert’s expected testimony, including whether the expert will testify about a particular theory.

Hines v. RAP Realty Corp. · filed 1998-10-13(d)(1)(i)

Pursuant to CPLR 3101 (d) (1) (i), the plaintiffs were required to disclose “the subject matter” and “the substance of the facts and opinions” on which their expert was expected to testify. We conclude that the Supreme Court providently exercised its discretion, as the information to be disclosed fell within the parameters of CPLR 3101 (d) (1) (i).

Section 3101(d) does not require preclusion of expert testimony when a bill of particulars gave the opposing party notice of the subject, despite a vague expert disclosure.

Gallo v. Linkow · filed 1998-11-05(d)

The trial court further improvidently exercised its discretion by precluding defense testimony on the possible role of plaintiff’s alleged culpable conduct in contributing to her injuries. While the first CPLR 3101 (d) notice referred to culpable conduct somewhat vaguely as “factors outside of the control” of defendant, the bills of particulars gave plaintiffs full warning of the details to which this phrase referred.

Section 3101(d)(1)(i) permits a court to preclude expert testimony when notice of the experts is given late after a timely disclosure demand.

Myers v. Myers · filed 1998-11-12(d)(1)(i)

Considering plaintiffs timely demand for disclosure, defendant’s llth-hour notice of expert witnesses and the court’s broad discretion in managing pretrial discovery (see, Karney v Arnot-Ogden Mem. Hosp., 251 AD2d 780), we conclude that Supreme Court did not abuse its discretion in precluding the testimony of three out of defendant’s four proposed experts (see, CPLR 3101 [d] [1] [i]; Karney v Arnot-Ogden Mem. Hosp., supra, at 784; Douglass v St. Joseph’s Hosp., 246 AD2d 695, 696-697; Ingleston v Francis, 206 AD2d 745).

Section 3101 permits a court to preclude expert testimony when a party fails to give the required notice.

Guiga v. JLS Construction Co. · filed 1998-11-24

The trial court properly precluded AAF’s expert from testifying on the custom and practice in the industry, due to AAF’s failure to provide the parties with CPLR 3101 notice (see, Tleige v Troy Pediatrics, 237 AD2d 772, 773; Joseph v Roger Morris Apts. Corp., 236 AD2d 297).

Section 3101(d)(1)(i) gives the court discretion to admit expert testimony despite a failure to disclose the witness’s intended expert role, particularly when the opposing party had notice of similar testimony and the omission was not willful.

Hansel v. Lamb · filed 1999-01-14(d)(1)(i)

We view the circumstances here to be such that Supreme Court’s decision to allow this testimony, as well as other expressions of opinion that arguably constituted expert proof, does not constitute an abuse of its broad discretion in this realm (see, Stafford v Molinoff, 228 AD2d 662, 663; Marra v Hensonville Frozen Food Lockers, 189 AD2d 1004, 1005; cf., McDermott v Alvey, Inc., 198 AD2d 95).

Section 3101(d)(1)(iii) requires a showing of special circumstances before a court may permit an expert’s deposition.

Brooks v. City of New York · filed 1998-08-24(d)(1)(iii)

Pursuant to CPLR 3101 (d) (1) (iii), in order to obtain a court order permitting a deposition of an expert, “a showing of special circumstances” must be made.

Section 3101(d)(1)(i) does not bar expert testimony from a treating physician who was not retained to testify at trial.

Overeem v. Neuhoff · filed 1998-10-19(d)(1)(i)

Because Dr. Wantz was the plaintiffs treating physician, rather than an expert retained to give opinion testimony at trial, CPLR 3101 (d) (1) (i) does not bar the admission of his expert testimony (see, Stark v Semeran, 244 AD2d 894; Rook v 60 Key Centre, 239 AD2d 926; Schwartz v Tab Operating Co., 239 AD2d 244; Wylie v Consolidated Rail Corp., 229 AD2d 966; Nesselbush v Lockport Energy Assocs., 169 Misc 2d 742).

Section 3101(d)(1)(i) applies to experts retained to testify at trial, not to treating physicians.

Casey v. Tan · filed 1998-11-13(d)(1)(i)

The court’s reliance upon CPLR 3101 (d) (1) (i) was misplaced; that section applies only to experts retained to give testimony at trial, and not to treating physicians (see, Stark v Semeran [appeal No. 2], 244 AD2d 894, lv dismissed 91 NY2d 956; Rook v 60 Key Centre, 239 AD2d 926, 927-928).

Section 3101(d) gives a trial court discretion to allow expert testimony despite untimely notice.

Gardiner v. Wertheimer · filed 1998-12-14(d)

The trial court acted within its discretion in permitting Dr. Accettola to testify, even though notice was not given in a timely fashion pursuant to CPLR 3101 (d). The trial court has discretion to permit an expert’s testimony where the appropriate notice is not given (see, CPLR 3101 [d]).

An expert disclosure notice that identifies a failure to monitor a patient can give sufficient notice of that theory of liability, even if it does not expressly describe continuous electronic monitoring.

Maldonado v. Cotter · filed 1998-12-31(d)

Further, defendants failed to establish either prejudice or surprise due to the alleged omission of the theory of continuous electronic monitoring against the attending anesthesiologist and the nurse anesthetist in plaintiffs expert disclosure notice under CPLR 3101 (d). Allegations that the expert would testify that they deviated from acceptable standards of care by failing “to monitor the infant after removing him from the operating room” and “failing] to appreciate changes in [his] respiratory rate and to properly access, monitor and respond to those changes” gave defendants sufficient notice of that theory (see, Gallo v Linkow, 255 AD2d 113; Rook v 60 Key Centre, 239 AD2d 926).

Section 3101(d)(1) permits a court to deny preclusion of expert testimony despite an untimely or inadequate response to expert discovery demands.

Bobrowsky v. Toyota Motor Sales U.S.A., Inc. · filed 1999-05-03(d)(1)

The court did not improvidently exercise its discretion in denying the plaintiffs motion to preclude the trial testimony of the defendants’ experts for failure to timely and adequately respond to expert discovery demands (see, CPLR 3101 [d] [1]; Tamborino v Burakoff, 224 AD2d 609).

Section 3101(d)(1) does not apply to a treating physician testifying about a patient's MRI.

Bonner v. Lee · filed 1998-11-13(d)(1)

Because the witness was one of plaintiff’s treating physicians, CPLR 3101 (d) (1) does not apply (see, Rook v 60 Key Centre, 239 AD2d 926; Wylie v Consolidated Rail Corp., 229 AD2d 966).

Section 3101(d)(1)(i) protects an expert’s identity and permits redaction of medical records and reports that would reveal a treating physician serving as the plaintiff’s expert.

Galdon v. Ring · filed 1999-05-07(d)(1)(i)

Supreme Court properly permitted plaintiffs to serve redacted copies of medical records and reports omitting the name and address of that physician and the name of the hospital. The redaction was “an appropriate accommodation of the competing purposes of broad disclosure under CPLR 3121 (b) and protection of the expert’s identity under CPLR 3101 (d) (1) (i)” (Wagner v Kingston Hosp., 182 AD2d 616, 617; see, Ryan v Michelsen, 241 AD2d 434, 436; see also, Napierski v Finn, 229 AD2d 869, 870-871).

Section 3101(d)(1)(iii) requires a showing of special circumstances to depose an opposing party’s expert witnesses.

North Shore Towers Apartments, Inc. v. Zurich Insurance · filed 1999-06-14(d)(1)(iii)

The Supreme Court did not err in quashing the subpoenas served on the defendant’s expert witnesses, as the plaintiff failed to demonstrate that “special circumstances” existed warranting the depositions of the defendant’s experts (see, CPLR 3101 [d] [1] [iii]; ... 171 AD2d 861).

Section 3101(d)(1) requires timely disclosure of expert witnesses so the parties can prepare for trial.

Meyer v. Zeichner · filed 1999-07-01(d)(1)

CPLR 3101 (d) requires timely disclosure of expert witnesses to enable the parties to adequately prepare for trial.

Section 3101(d)(1)(i) does not shield a lawyer’s communications with potential expert witnesses in an underlying medical malpractice case from disclosure in a legal malpractice action alleging the lawyer’s wrongdoing.

Getman v. Petro · filed 1999-11-10(d)(1)(i)

While we agree that documents numbered 4, 5 and 8 were properly withheld, we find no basis upon which to conclude that Ingalsbe’s communications and correspondence with potential expert witnesses in connection with the medical malpractice action should be withheld pursuant to CPLR 3101 (d) (1) (i) since they are being sought in this action for legal malpractice based upon defendants’ alleged wrongdoing (see, Boucher v Williams, 173 Misc 2d 265, 266; Siegel, 1998 Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C310L29A, 1999 Pocket Part, at 5).

Section 3101(d) permits exclusion of a retained expert’s testimony when a party willfully delays retaining the expert and giving notice of the expected testimony until almost trial.

Botwinick v. Duck Corp. · filed 1999-12-16(d)

The court’s exclusion of the testimony of plaintiff’s retained valuation expert, based on what we view as plaintiff’s willful failure to retain such expert and to give notice of his expected testimony pursuant to CPLR 3101 (d) until almost the eve of trial, was a proper exercise of discretion.

Section 3101(d)(1)(i) entitles a party to an expert’s qualifications before trial, but an affidavit omitting them may defeat summary judgment when the party has not requested expert disclosure and the court reviews the full affidavit in camera.

Rojas v. McDonald · filed 1999-12-21(d)(1)(i)

While the redacted affidavit also concealed the expert’s qualifications, information to which defendant is entitled prior to trial under CPLR 3101 (d) (1) (i), nevertheless, this omission did not render the affidavit insufficient to defeat the motion, where defendant had not requested expert disclosure pursuant to CPLR 3101 (d) (1) (i) and the court examined the unredacted affidavit in camera.

Section 3101(d)(1)(i) requires sufficient disclosure of the substance of an expert’s anticipated testimony.

Donacik v. Pool Mart, Inc. · filed 2000-03-29(d)(1)(i)

Plaintiffs limited disclosure of the substance of the expert’s anticipated testimony did not satisfy the criteria of CPLR 3101 (d) (1) (i) (see, Qian v Dugan, 256 AD2d 782; Chapman v State of New York, 189 AD2d 1075).

Section 3101(d) permits a court to admit expert testimony despite a disclosure failure when the opposing party delayed its own expert disclosures.

Siagha v. Salant-Jerome, Inc. · filed 2000-04-13(d)

The trial court’s determination to receive the testimony of plaintiffs expert despite plaintiffs failure to abide by CPLR 3101 (d) was a proper exercise of discretion (see, Campoli v Lobmeyer, 183 AD2d 1049; Lesser v Lacher, 203 AD2d 181), in light of plaintiffs showing that defendants delayed notifying plaintiff of their intention to offer expert testimony and were late in presenting plaintiff with their expert’s report.

In a medical malpractice action, CPLR 3101(d) permits a protective order limiting disclosure of an expert’s qualifications when further details would reveal the expert’s identity.

Duran v. New York City Health & Hospitals Corp. · filed 1999-10-05(d)

Accordingly, plaintiffs motion for a protective order is granted to the extent that plaintiff is required to provide only the expert’s State of licensure and board certification.

Section 3101(d) requires disclosure of an examining physician’s report; contradictory testimony that surprises and prejudices the opposing party requires a showing of good cause for admission.

Gregory v. Mulligan · filed 1999-11-15(d)

Since the defendant failed to make the requisite showing of good cause for the admission of this contradictory testimony, a new trial is warranted under the circumstances (see, 22 NYCRR 202.17 [h]; CPLR 3101 [d]; Baden v Peterson Trust, 190 AD2d 705, 706).

CPLR 3101(d)(1)(i) does not treat the loss of an object as special circumstances warranting an expert’s deposition when the object was available for inspection and the expert disclosure reasonably described the expected testimony.

Vogel v. Benwil Industries, Inc. · filed 1999-12-06(d)(1)(i)

Contrary to the contentions of Benwil and Auto Plaza, the disappearance of the lift before their inspection of it does not constitute “special circumstances” (see, CPLR 3101 [d] [1] [i]). The lift was available for inspection for a sufficient period of time before its loss or destruction, and the expert witness disclosure submitted by the plaintiff reasonably detailed the subject matter on which his expert is expected to testify (see, CPLR 3101 [d] [1] [i]).

An expert witness disclosure statement under CPLR 3101(d)(1) cannot be used against a party at trial because it is unsworn and is not a pleading.

Gibson v. St. Luke's Roosevelt Hospital Center · filed 1999-12-21(d)(1)

The admission of the disclosure statement constitutes error and the prejudice therefrom was sufficiently substantial as to warrant a new trial. ... “Such statements are not sworn, as are interrogatory answers, affidavits, trial or pretrial testimony, nor are they in the nature of pleadings, to be used for any purpose against a party.”

Section 3101(d)(1)(iii) requires special circumstances to justify a pretrial deposition of an expert; novelty of the expert’s opinion or claimed flaws in it do not suffice.

Padro v. Pfizer, Inc. · filed 2000-02-01(d)(1)(iii)

Contrary to the conclusion reached by Supreme Court, defendant failed to demonstrate special circumstances justifying a pretrial deposition of plaintiff’s expert (CPLR 3101 [d] [1] [iii]).

Section 3101(d) does not require preclusion of a treating physician’s causation testimony for lack of notice when the physician’s records and reports were fully disclosed and the defendant would suffer no surprise or prejudice.

Ryan v. City of New York · filed 2000-02-08(d)

When the plaintiff’s intended expert witness is a treating physician whose records and reports have already been fully disclosed pursuant to CPLR 3121 and 22 NYCRR 202.17, the failure to serve a CPLR 3101 (d) notice regarding that physician does not justify a preclusion of that expert’s testimony on the issue of causation, since the defendant has sufficient notice of the proposed testimony, and neither surprise nor prejudice would result ... To the extent that defendants have been prejudiced by lack of information as to the physicians’ credentials, that issue can be easily resolved by Supreme Court prior to trial.

Section 3101(d)(1) requires expert witness disclosures specific enough to convey the content of the experts’ anticipated testimony.

Syracuse v. Diao · filed 2000-05-10(d)(1)

With respect to the order in appeal No. 2, we conclude that the court properly granted the motion of Dr. Diao and Buffalo Hand Surgery, P. C. to compel plaintiff to provide further particulars concerning her expert witness disclosures (see, CPLR 3101 [d] [1]). The responses of plaintiff concerning her expert witnesses were “ ‘so general and nonspecific that [defendants have] not been enlightened to any appreciable degree about the content of [the experts’] anticipated testimony”’ (Chapman v State of New York, 189 AD2d 1075, quoting Saar v Brown & Odabashian, 139 Misc 2d 328, 334; see also, Brossoit v O’Brien, 169 AD2d 1019, 1020-1021).

CPLR 3101(d)(1) is satisfied when a party identifies its expert witness and the subject matter of the testimony as soon as it knows the expert will testify.

In re Julie K. · filed 2000-05-10(d)(1)

Contrary to respondent’s contention, petitioner complied with Family Court Act § 1038 (d) and CPLR 3101 (d) (1) by providing respondent with the name of its expert witness and the subject matter of her testimony as soon as it was aware that she would testify.

Section 3101(d) permits an expert to testify despite late notice when the delay is neither willful nor prejudicial.

Ateser v. Becker · filed 2000-05-23(d)

Defendants’ medical expert was properly allowed to testify upon a showing that defendants’ late service of CPLR 3101 (d) notice was neither willful nor prejudicial (see, Flour City Architectural Metals v Sky-Lift Corp., 242 AD2d 471).

Section 3101 permits disclosure of the names and addresses of witnesses with material information when no privilege, work-product, or litigation-preparation exception applies.

Parsons v. Borden, Inc. · filed 2000-06-29(a)

CPLR 3101 (a) provides for “full disclosure of all evidence material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” There are, however, exceptions to this rule with respect to material that is (1) privileged, (2) an attorney’s work product, or (3) prepared in anticipation of litigation (see, CPLR 3101 [b], [c], [d]). Here, the witness information which Supreme Court directed third-party defendant to disclose does not fall within any of these exceptions. Inasmuch as the court narrowly tailored its directive to the names and addresses of such witnesses (see, Culbert v City of New York, 254 AD2d 385, 387), we find no abuse of discretion.

Section 3101(d)(1)(i) requires expert witness disclosure to describe in reasonable detail each expert’s expected subject matter and the substance of the facts and opinions on which the expert is expected to testify.

Gholson v. County of Nassau · filed 2000-07-17(d)(1)(i)

The appellant failed to “disclose in reasonable detail the subject matter on which each expert [was] expected to testify [and] the substance of the facts and opinions on which each expert [was] expected to testify” (CPLR 3101 [d] [1] [i]).

Section 3101(d)(1)(i) does not require preclusion of expert testimony when an undisclosed detail explains the expert’s disclosed opinion without making the disclosure misleading or inconsistent.

Oliver Chevrolet, Inc. v. Mobil Oil Corp. · filed 2000-07-20(d)(1)(i)

Initially, we must review whether defendant properly complied with CPLR 3101 (d) (1) when it disclosed, 4V2 months prior to trial, the subject matter and substance of the facts and opinions on which its environmental expert, Michael Wade, was to testify. ... Upon our review of the statutory prerequisites ... compared with the description of the subject matter of Wade’s expected testimony and the substance of the facts and opinions upon which it would be based, we can find no error.

Section 3101(d)(1)(i) requires timely, reasonably detailed disclosure of an expert’s opinions, including when a party adopts another party’s expert; inadequate disclosure can warrant preclusion.

Gilbert v. Luvin · filed 2000-10-05(d)(1)(i)

Because of the defendants’ failure to establish that their adopted expert’s report was exchanged prior to trial and because of the inadequacy of the CPLR 3101 (d) notice served during trial, the witness should have been precluded. Since Dr. Schütz was the only expert for defendants, the failure to provide timely and adequate disclosure pursuant to CPLR 3101 (d) constitutes grounds for setting aside the verdict.

A treating physician may give expert opinion testimony without prior notice under CPLR 3101(d).

Krinsky v. Rachleff · filed 2000-10-30(d)

In addition to testifying to his or her own observations, a treating physician may give expert opinion testimony (see, Perrone v Grover, 272 AD2d 312) and may do so without prior notice pursuant to CPLR 3101 (d) (see, Casey v Tan, 255 AD2d 900; Overeem v Neuhoff, 254 AD2d 398).

Section 3101(d)(1)(i) sets no specific time for responding to a demand for expert witness information.

Blade v. Town of North Hempstead · filed 2000-11-13(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.

Section 3101(d)(1)(i)’s expert disclosure requirement does not apply to testimony about a witness’s personal experience with paving projects, even when a question arguably seeks an opinion.

Butler v. County of Chautauqua · filed 2000-11-13(d)(1)(i)

In any event, the testimony at issue did not address the custom and practice in the industry but rather addressed the personal experience of those witnesses regarding paving projects with which they had been involved and, thus, did not constitute expert opinion. Although the question to which plaintiff objected did arguably seek an opinion, such testimony was not “expert opinion” and, in our view, is not a ground for setting aside the verdict.

Section 3101(d) does not warrant precluding expert testimony where there is no proof of intentional or wilful failure to disclose and no prejudice or surprise.

Manes v. Manes · filed 2000-11-20(d)

The Supreme Court improvidently exercised its discretion in granting the defendants’ motion to preclude the plaintiffs experts from testifying at trial. There was no proof that the plaintiff intentionally or wilfully failed to provide disclosure pursuant to CPLR 3101 (d).

Section 3101(d) permits late expert disclosure for good cause, including the unexpected death of the party’s original expert.

Marshall v. 130 North Bedford Road Mount Kisco Corp. · filed 2000-11-27(d)

Moreover, the untimely death of the expert the plaintiffs originally intended to call provided good cause for the late submission of the form (see, CPLR 3101 [d]).

Section 3101(d)(1)’s disclosure requirement does not apply to a fact witness.

Sheppard v. Blitman / Atlas Building Corp. · filed 2000-12-19(d)(1)

The witness, who testified about the terms of plaintiff’s pension plan, was a fact witness and not an expert witness. Thus, the disclosure requirement in CPLR 3101 (d) (1) was inapplicable (see, Rook v 60 Key Centre, 239 AD2d 926; Santariga v McCann, 161 AD2d 320, 321).

Section 3101(d)(1)(i) calls for disclosure of an expert’s qualifications; when a new trial is granted, the party has another opportunity to provide them.

Hunter v. Tryzbinski · filed 2000-12-27(d)(1)(i)

With respect to the court’s alternative basis for preclusion, i.e., defendant’s failure to disclose Dr. Cowan’s qualifications along with the other expert disclosure materials (see, CPLR 3101 [d] [1] [i]), we note that plaintiff specifically disclaims that as a basis for upholding the ruling. In any event, because there must be a new trial, defendant will have a further opportunity to provide plaintiff with the qualifications of Dr. Cowan (cf., Hughes v Elias, supra, at 705).

In medical malpractice actions, section 3101(d)(1)(i) permits disclosure of an expert’s qualifications without details likely to reveal the expert’s identity.

Deitch v. May · filed 2000-08-24(d)(1)(i)

The court is satisfied that if further information were provided at this juncture, including that specifically raised by the plaintiffs in their instant preclusion motion, a greater likelihood would then exist that the expert’s identity would be revealed. Accordingly, the court deems the defendant’s expert witness response to be satisfactory under CPLR 3101 (d) (1) (i) and its interpretive case law.

Section 3101(d)(1)(i) requires disclosure of the substance of an expert’s expected facts and opinions; unexplained figures in a bill of particulars do not satisfy that requirement.

Espinal v. 570 W. 156th Associates · filed 2000-10-03(d)(1)(i)

Plaintiffs references to the large, ... unanalyzed numbers in her bill of particulars hardly satisfied the requirement of CPLR 3101 (d) (1) (i) that “the substance of the facts and opinions on which each expert is expected to testify” be disclosed.

Section 3101(d) permits a medical expert to rule out a specific cause when the disclosed report only says that broader environmental factors may have contributed.

Klempner v. Leone · filed 2000-11-13(d)

However, the landlord’s medical expert did not contradict himself when he stated that the injured plaintiffs carbon monoxide exposure was not causally related to the exacerbation of her asthma condition. His medical report stated that environmental factors may have been causally related to the exacerbation of her condition, but never specifically mentioned that the carbon monoxide exposure was one of those environmental factors. Thus, the trial court providently exercised its discretion in allowing the testimony.

Section 3101(d)(1)(i) does not allow a plaintiff to withhold a medical expert’s identity from defendants against whom a lack of informed consent claim is not viable.

Salva v. Blum · filed 2000-11-13(d)(1)(i)

Given the lack of viability of the cause of action for lack of informed consent against defendants, plaintiff has no basis for withholding the identity of her medical expert from them based on the exception to the disclosure requirement (see, CPLR 3101 [d] [1] [i]; Travis v Wormer [appeal No. 1], 136 AD2d 933; see also, Rivera v City of New York, 150 Misc 2d 566, 569).

Section 3101(d)(1)(iii) requires a showing of special circumstances to depose a treating psychologist who will also testify as an expert witness.

Melendez v. Roman Catholic Archdiocese · filed 2000-11-14(d)(1)(iii)

Under CPLR 3101 (d) (1) (iii), defendants must show “special circumstances” in support of their demand to depose plaintiffs psychologist, who will also be plaintiffs expert witness at trial, especially since her report has provided them with a clear idea of what the nature of her testimony will be, including her opinion as to the extent of plaintiffs psychological damages and her diagnosis (see, Weinberger v Lensclean Inc., 198 AD2d 58). Defendants fail to make any such showing.

Section 3101(d)(1) permits depositions of expert witnesses when special circumstances exist because they possess facts relevant to the claims.

Taft Partners Development Group v. Drizin · filed 2000-11-28(d)(1)

If the accountant and executive are indeed “experts” for purposes of disclosure, it also appears that they are in possession of facts relevant to defendant’s claims, and, to that extent, special circumstances exist within the meaning of CPLR 3101 (d) (1) warranting their depositions.

Section 3101(d)(1) permits amended expert disclosure responses when last-minute changes in trial strategy provide good cause and cause no demonstrable prejudice.

Lindsay v. County of Westchester · filed 2000-12-11(d)(1)

Given these legitimate last-minute changes in trial strategies, and an absence of demonstrable prejudice, both the plaintiff and the appellant demonstrated good cause for their amended responses to their mutual demands for expert disclosure (see, CPLR 3101 [d] [1]).

An expert disclosure satisfies Section 3101(d)(1)(i) when it sufficiently identifies the negligence theory on which the expert will testify.

Law v. Moskowitz · filed 2001-01-18(d)(1)(i)

We find that the disclosure fully complied with CPLR 3101 (d) (1) (i) in that it sufficiently advanced the theory that defendants were negligent in failing to properly monitor Law’s urine output during and after surgery.

A motion to strike expert testimony for exceeding pretrial disclosure may be denied when it is untimely and the movant shows no good cause for the delay.

Cavallaro v. Somaskanda · filed 2001-02-07(d)(1)(i)

Only after the close of proofs did they move to strike his testimony on the ground that it exceeded the scope of pretrial disclosure (see, CPLR 3101 [d] [1] [i]). We conclude that plaintiffs’ motion was not timely and that plaintiffs failed to establish good cause for the delay, and thus the motion was properly denied (see, ...).

Section 3101(d)(1)(i) permits a party that retains an expert shortly before trial for good cause to offer that expert’s testimony despite insufficient notice.

Rushford v. Facteau · filed 2001-02-08(d)(1)(i)

Addressing the contention that Supreme Court erred when it permitted Liska to testify as an expert despite defendant’s failure to provide plaintiffs with the requisite notice, CPLR 3101 (d) (1) (i) expressly provides that “where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert’s testimony at the trial solely on grounds of noncompliance.” Recognizing the broad discretion vested in a trial court in matters of this kind, we can find no abuse of discretion here.

Section 3101(d)(1)(i) requires adequate expert disclosure; misleading disclosure can justify precluding the expert’s testimony.

Galaz v. Sobel & Kraus, Inc. · filed 2001-02-27(d)(1)(i)

The trial court also properly precluded plaintiffs economic expert from testifying as to plaintiffs alleged lost future income, since plaintiffs disclosure pursuant to CPLR 3101 (d) (1) (i) was inadequate and, when combined with plaintiffs bill of particulars, was misleading (see, Parsons v City of New York, 175 AD2d 783).

Section 3101(d) does not warrant precluding expert testimony when the failure to disclose was neither intentional nor willful and caused no prejudice.

Vega v. LaPalorcia · filed 2001-03-26(d)

Under these circumstances, the plaintiffs did not intentionally or willfully fail to comply with CPLR 3101 (d), and the defendant was not prejudiced.

Section 3101(d) permits an expert to testify despite a deficient disclosure response when other case documents give sufficient notice of the subject matter and substance of the testimony.

Aponte v. City of New York · filed 2001-04-24(d)

Even if plaintiff’s CPLR 3101 (d) response was deficient, plaintiff’s notice of claim, her complaint and her bill of particulars combined to afford sufficient notice of the subject matter and substance of the expert’s testimony (see, Misel v N.F.C. Cab Corp., 240 AD2d 294, 295).

Section 3101(d)(1)(i) requires expert witness disclosure to summarize the facts supporting the expert’s expected testimony.

Allen v. Krna · filed 2001-04-26(d)(1)(i)

Furthermore, plaintiffs response to defendants’ demand for experts failed to summarize the facts that formed the basis of plaintiffs statement (see, CPLR 3101 [d] [1] [i]) that her expert “will find and will testify to the exact value of the marital assets which [defendant[s] failed to identify.”

CPLR 3101(d)(1)(i) does not prevent a court from considering an expert affidavit when the expert’s identity was not disclosed earlier, absent a showing of willfulness or prejudice.

Downes v. American Monument Co. · filed 2001-05-15(d)(1)(i)

The motion court properly considered the affidavit of plaintiffs expert witness in opposition to summary judgment, notwithstanding plaintiffs failure to disclose the expert’s identity previously pursuant to CPLR 3101 (d) (1) (i), there being no showing of willfulness in or prejudice caused by the failure to disclose earlier (see, McDermott v Alvey, Inc., 198 AD2d 95).

Section 3101(d)(1)(i) is satisfied when expert disclosures sufficiently detail the theory expected at trial and the grounds for each expert’s opinion.

Cocca v. Conway · filed 2001-05-17(d)(1)(i)

In our view, these disclosures reflect full statutory compliance, sufficiently detailing the theory that defendants expected to and ultimately did advance at trial, along with the grounds for each expert’s opinion (see, Law v Moskowitz, 279 AD2d 844, 846).

Section 3101(d)(1)(i) requires expert witness responses to disclose in reasonable detail the subject matter of the expected testimony and the substance of the supporting facts and opinions.

Morabito v. Hudson Valley Plastic Surgeons, P. C. · filed 2001-08-27(d)(1)(i)

However, the Supreme Court erred to the extent that it required additional responses to demand numbers 6 and 8 in the Expert Witness Demand, as the plaintiffs responses to those demands sufficiently disclosed, in reasonable detail, the subject matter as to which the plaintiffs expert was expected to testify, and the substance of the facts and opinions on which that testimony would be based (see, CPLR 3101 [d] [1] [i]).

CPLR 3101(d) permits an expert to testify despite inadequate notice when the failure was not willful and prejudicial.

Gilbert v. Luvin · filed 2001-09-13(d)

In any event, the trial court was initially correct when it permitted the expert’s testimony, despite apparent ...noncompliance with CPLR 3101 (d), since the failure was not willful and prejudicial (see, Ateser v Becker, 272 AD2d 219, lv denied 95 NY2d 762; Gallo v Linkow, 255 AD2d 113, 117).

A court may allow expert testimony despite a failure to strictly comply with expert disclosure requirements when the opposing party cannot claim surprise or prejudice.

Fishkin v. Massre · filed 2001-09-24(d)(1)(i)

Contrary to the plaintiffs contention, despite the defendant’s failure to strictly comply with CPLR 3101 (d) (1) (i), under the circumstances of this case, the trial court providently exercised its discretion in allowing the defendant’s examining physician to testify that the injuries to the plaintiffs right shoulder and elbow, and the resulting surgeries, were not proximately caused by the subject accident (see, Manes v Manes, 277 AD2d 359, 361; Law v Moskowitz, 279 AD2d 844, 846; Hansel v Lamb, 257 AD2d 795, 796).

Incomplete disclosure of a medical expert under § 3101(d)(1)(i) does not require excluding the expert’s testimony when the opposing party is not prejudiced.

Karoon v. New York City Transit Authority · filed 2001-09-27(d)(1)(i)

The trial court acted within its discretion (see, Ginsberg v New York Prop. Ins. Underwriting Assn., 210 AD2d 130, 131) in permitting the defense medical expert to testify within specific limits on the intoxication issue, and, as the trial court found, under the unique circumstances of this case, plaintiff was not prejudiced by the lack of full compliance (CPLR 3101 [d] [1] [i]; see, e.g., McDermott v Alvey, Inc., 198 AD2d 95).

Section 3101(d)(1)(i) requires disclosure of the substance of an expert’s expected facts and opinions; full disclosure before retrial can cure a deficiency or potential prejudice.

Castellani v. Bagdasarian · filed 2001-09-28(d)(1)(i)

Plaintiffs expert disclosure sufficiently set forth “the substance of the facts and opinions on which” the expert was expected to testify (CPLR 3101 [d] [1] [i]; see, Barrowman v Niagara Mohawk Power Corp., 252 AD2d 946, 946-947, lv denied 92 NY2d 817), and there was no “demonstrable prejudice or surprise” to defendant (Rook v 60 Key Centre, 239 AD2d 926, 927).

Section 3101(d)(1)’s expert witness disclosure requirement does not apply to a fact witness.

Sheppard v. Blitman/Atlas Building Corp. · filed 2001-11-08(d)(1)

The witness, who testified about the terms of plaintiff’s pension plan, was a fact witness and not an expert witness. Thus, the disclosure requirement in CPLR 3101 (d) (1) was inapplicable (see, Rook v 60 Key Centre, 239 AD2d 926; Santariga v McCann, 161 AD2d 320, 321).

Section 3101(d)(1)(i) requires reasonably detailed disclosure of an expert’s qualifications and a summary of the grounds for the expert’s opinion.

Strach v. Doin · filed 2001-11-15(d)(1)(i)

Pursuant to CPLR 3101 (d) (1) (i), plaintiff was required to “disclose in reasonable detail the subject matter on which [her] expert [was] expected to testify, the substance of the facts and opinions on which [her] expert [was] expected to testify, the qualifications of [such] expert witness and a summary of the grounds for [the] expert’s opinion.” Based upon our review of plaintiffs response to Exit 9’s demand in this regard, we cannot say that plaintiff complied with the statutory mandate.

CPLR 3101(d)(1)(i) does not require expert witness information by a specific time; delayed disclosure does not warrant preclusion without intentional or willful noncompliance and prejudice to the opposing party.

Shopsin v. Siben & Siben · filed 2001-12-03(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” ... Here, there is no evidence that the plaintiffs delay in retaining expert witnesses and serving an expert witness notice was willful or intentional, and any potential prejudice to the defendants could have been alleviated by granting an adjournment.

Section 3101(d)(1)(i) requires an expert disclosure to include the facts supporting the expert’s ultimate opinion.

Cramer v. Englert · filed 2001-12-06(d)(1)(i)

In short, the supplemental disclosure failed to include the facts which support the expert’s ultimate opinion, as required by CPLR 3101 (d) (1) (i) (see, Oliver Chevrolet v Mobil Oil Corp., 274 AD2d 782, 783; Syracuse v Diao, 272 AD2d 881, 882; Douglass v St. Joseph’s Hosp., 246 AD2d 695, 697).

Section 3101(d)(1)(iii) requires special circumstances to warrant depositions of an opposing party’s expert witnesses.

Fekete v. GA Insurance · filed 2001-01-11(d)(1)(iii)

Plaintiff failed to establish special circumstances warranting the depositions of defendant’s expert witnesses (see, CPLR 3101 [d] [1] [iii]) and the court properly granted defendant’s motion to quash those subpoenas (see, King Elecs. of Graham Ave. v American Natl. Fire Ins. Co., 232 AD2d 273; Generali Ins. Co. v Honeywell, Inc., 194 AD2d 442).

In a medical malpractice case, an expert’s name may be redacted from an affidavit if an unredacted copy is submitted to the trial court for in camera review.

Wilcox v. Winter · filed 2001-04-12(d)(1)(i)

Thus, but for counsel’s unfamiliarity with the “generally acceptable procedure” in medical malpractice cases to redact the name of the expert and also submit an unredacted version to the trial court (Napierski v Finn, 229 AD2d 869, 870; see, CPLR 3101 [d] [1] [i]), the expert affidavit would have been sufficient to defeat defendant’s motion for summary judgment.

Section 3101(d) does not require prior notice of testimony from a physician who treated the injured plaintiff.

Warner v. Adelphi University · filed 2001-05-14(d)

The defendants were not required to provide prior notice of his testimony pursuant to CPLR 3101 (d) (see, Krinsky v Rachleff, 276 AD2d 748; Mantuano v Mehale, 258 AD2d 566).

Section 3101(d)(1)(i) requires a reasonably detailed summary of the grounds for an expert’s opinion.

Ferris v. Marchese · filed 2001-06-08(d)(1)(i)

The court also properly denied that part of defendant’s April 2000 motion seeking further expert disclosure pursuant to CPLR 3101 (d) (1) (i). Contrary to defendant’s contention, plaintiffs disclosed in reasonable detail a summary of the grounds for the opinion of their economist (see, Krygier v Airweld, Inc., 176 AD2d 700, 700-701).

Section 3101(d)(1) permits conditional preclusion for withholding an expert report, with a final opportunity to comply when the opposing party shows no actual prejudice.

Cela v. Goodyear Tire & Rubber Co. · filed 2001-09-25(d)(1)

Nevertheless, in view of Goodyear’s failure to demonstrate any actual prejudice, we deem it appropriate to afford plaintiffs a final opportunity to comply by granting Goodyear’s motion to preclude conditionally (see, McDermott v Alvey, Inc., 198 AD2d 95; see also, Herrera v Persaud, 276 AD2d 304).

Section 3101(d)(1)(i) allows a medical malpractice plaintiff to withhold a medical expert’s identity.

Engel v. Defeo · filed 2001-09-28(d)(1)(i)

This court is constrained, by the clear and precise language of the statute, to acknowledge that the plaintiff may “omit” the identity of her medical expert.

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

Richards v. Herrick · filed 2002-03-15(d)(1)(i)

That response fails to reveal “the substance of the facts and opinions on which [the] expert is expected to testify” (CPLR 3101 [d] [1] [i]).

Section 3101(d)(1) permits a court to reject affidavits from experts omitted from pretrial disclosure when the affidavits are served after a note of issue attesting that discovery is complete.

Dawson v.Cafiero · filed 2002-03-18(d)(1)

The Supreme Court providently exercised its discretion in rejecting the affidavits of two purported experts proffered by the plaintiffs, as they did not identify these experts in their pretrial disclosure, and served the affidavits after filing a note of issue attesting to the completion of discovery (see, CPLR 3101 [d] [1]; Ortega v New York City Tr. Auth., 262 AD2d 470; Mankowski v Two Park Co., 225 AD2d 673).

Section 3101(d) supports excluding an expert witness when a party fails to disclose the witness as required by a court’s expert disclosure order.

Saggese v. Madison Mutual Insurance · filed 2002-05-03(d)

We further conclude that the court did not abuse its discretion in refusing to permit the treating physician of the person accused of setting the fire to testify. Plaintiff called that witness on the fourth day of the trial and had failed to comply with the court’s expert disclosure order by disclosing the existence of that witness (see CPLR 3101 [d]; cf. Rook v 60 Key Ctr., 239 AD2d 926, 927; Majcher v Federal Mach. Co., 234 AD2d 921).

Section 3101(d)(1)(i) requires disclosure of the defects an expert will address; a prolonged failure to supplement that disclosure can justify precluding testimony about undisclosed defects.

McCarthy v. Handel · filed 2002-08-15(d)(1)(i)

Based upon the foregoing, the court justifiably concluded that plaintiffs’ prolonged failure to supplement their CPLR 3101 (d) (1) (i) disclosure by, inter alia, specifying the alleged defects, justified precluding plaintiffs’ expert from testifying regarding such nondisclosed matters (see, CPLR 3126 [2]; Walsh v Liberty Mut. Ins. Co., 289 AD2d 842, 843; Cramer v Englert, 289 AD2d 617, 618-619, Iv denied 98 NY2d 604; Qian v Dugan, 256 AD2d 782; Chapman v State of New York, 189 AD2d 1075; see also, Kihl v Pfeffer, 94 NY2d 118, 122-123).

Section 3101(d) does not require expert witness notice for a medical report admitted as a business record rather than expert testimony.

Batts v. Rutrick · filed 2002-10-15(d)

At trial, the plaintiffs objected to admission of the Island Wide report on the ground that the defendants had not provided them with notice of it, and now contend that its admission violated CPLR 3101 (d). However, the report was ... not the testimony of an expert witness for which notice would have been required under that statute.

Precluding an expert for delayed disclosure under section 3101(d)(1)(i) is improper when discovery remains open and the opposing party shows no prejudice.

EIFS, Inc. v. Morie Co. · filed 2002-10-28(d)(1)(i)

Moreover, one of the factors on which the Supreme Court based its order of preclusion was the plaintiffs’ failure to provide expert witness disclosure pursuant to CPLR 3101 (d) (1) (i). However, since the action was not yet placed on the trial calendar, discovery was not completed, and the defendant failed to establish any prejudice from the plaintiffs’ failure to disclose such information before the conclusion of discovery, it was an improvident exercise of discretion to preclude their expert from testifying at trial on that basis (see Shopsin v Siben & Siben, 289 AD2d 220; Spreer v Whitestone Sav., F.A., 194 AD2d 602).

Section 3101(d)(1)(i) permits preclusion of expert testimony on a subject omitted from expert disclosure when a late supplemental disclosure lacks good cause.

Dombrowski v. Moore · filed 2002-11-15(d)(1)(i)

Defendant’s expert was properly precluded from testifying with respect to causation because defendant did not list that subject matter in the expert disclosure and did not provide a supplemental disclosure until six days following the commencement of trial, after plaintiff had rested.

Section 3101(d)(1) requires notice of expert testimony, and failure to give notice can justify precluding an expert whose testimony the opposing party could not have anticipated.

Scherer v. Equitable Life Assurance Society of United States · filed 2002-11-26(d)(1)

In any event, such preclusion was appropriate since plaintiff failed to give CPLR 3101 (d) (1) notice and defendant could not have anticipated the subject matter of witness’s expert testimony (see Guiga v JLS Constr. Co., 255 AD2d 244; compare Flour City Architectural Metals v Sky-Lift Corp., 242 AD2d 471).

Section 3101(d) governs expert witness disclosure; preclusion was unwarranted where the moving party failed to show diligent efforts to resolve the dispute and willful nondisclosure.

Baez v. Sugrue · filed 2002-12-23(d)

The Supreme Court properly denied that branch of the defendants’ motion which was to preclude the plaintiffs’ expert witnesses from testifying at trial, because they failed to demonstrate that they made a diligent effort to resolve this discovery dispute and that the plaintiffs’ failure to disclose was willful (see CPLR 3101 [d]; 3126; 22 NYCRR 202.7 [a] [2]; Blade v Town of N. Hempstead, 277 AD2d 268; Barnes v NYNEX, Inc., 274 AD2d 368).

Section 3101(d)(1)(i) does not require disclosure of a medical expert’s education and training details when those details would reveal the expert’s identity.

Thompson v. Swiantek · filed 2002-02-01(d)(1)(i)

Memorandum: Supreme Court erred in denying plaintiffs’ motion for a protective order pursuant to CPLR 3103 (a) in this medical malpractice action and in ordering plaintiffs to provide a further response to the demand of Philip A. Swiantek, M.D. and Philip A. Swiantek, M.D., P.C. (defendants) for information regarding their medical expert (see, CPLR 3101 [d] [1] [i]). ... Because disclosure of that additional information would “effectively lead to disclosure of the expert’s identity,” the request for such disclosure is “palpably improper” (Jones v Putnam Hosp. Ctr., 133 AD2d 447, 447; cf., Jasopersaud v Tao Gyoun Rho, 169 AD2d 184, 188).

Section 3101(d)(1)(i) requires a plaintiff suing a physical therapy practice to disclose the identity and qualifications of a medical expert.

Censki v. Madison Avenue Physical Therapy, P.C. · filed 2002-02-19(d)(1)(i)

In this action, where the sole defendant is Madison Avenue Physical Therapy, P.C., plaintiff must divulge the identity and qualifications of her medical expert.

Section 3101(d) permits an expert disclosure with limited detail when the disclosure and available records give the opposing party notice of the expert’s proposed causation testimony.

Flores v. New York Hospital-Cornell Medical Center · filed 2002-05-28(d)

Defendant’s CPLR 3101 (d) response respecting the expert testimony it intended to offer at trial apprised plaintiff that defendant’s experts would dispute and rebut plaintiffs theory that his injury was caused by the failure of defendant, through its on-call anesthesiologist, to properly monitor and regulate plaintiffs body fluid levels. This response, although not detailed, was adequate, under all of the circumstances presented, including plaintiffs access to the hospital record in which plaintiffs anesthesiologist noted various theories other than improper fluid management to explain plaintiffs postoperative condition.

Section 3101(d)(1)(i) requires reasonable detail about an expert's expected testimony; inadequate disclosure may warrant precluding the expert.

Weeden v. First National Bank of Long Island · filed 2002-09-30(d)(1)(i)

The Supreme Court providently exercised its discretion in precluding the plaintiffs expert economist from testifying based on the plaintiffs failure to comply with CPLR 3101 (d) (1) (i). The plaintiff failed to disclose in reasonable detail the subject matter and the substance about which the expert was expected to testify (see CPLR 3101 [d] [1] [i]; Hubbard v Platzer, 260 AD2d 605; Lyall v City of New York, 228 AD2d 566).

Section 3101(d)(1)(i)’s disclosure requirements do not apply to treating physicians.

Hunt v. Ryzman · filed 2002-03-04(d)(1)(i)

Contrary to the defendant’s contention, the trial court properly permitted the plaintiff’s treating physicians to testify at trial, notwithstanding the plaintiff’s failure to provide him with information regarding those physicians pursuant to CPLR 3101 (d) (1) (i). It is well settled that the disclosure requirements of CPLR 3101 (d) (1) (i) do not apply to treating physicians (see, Mantuano v Mehale, 258 AD2d 566; Overeem v Neuhoff, 254 AD2d 398).

A treating physician may give an expert opinion without prior notice under CPLR 3101(d)(1)(i).

Malanga v. City of New York · filed 2002-12-23(d)(1)(i)

Contrary to the trial court’s determination, a treating physician may give an expert opinion without prior notice pursuant to CPLR 3101 (d) 1 (i) (see Hunt v Ryzman, 292 AD2d 345, 346; Krinsky v Rachleff, 276 AD2d 748, 750; Overeem v Neuhoff 254 AD2d 398, 400).

Section 3101(d)(1)(iii) permits disclosure from an opposing party’s expert witness when the requesting party establishes special circumstances.

Repka v. Arctic Cat, Inc. · filed 2002-12-30(d)(1)(iii)

Plaintiff established the requisite special circumstances warranting disclosure by Hermanee as Arctic’s expert witness (see CPLR 3101 [d] [1] [iii]; ... 132 AD2d 921, 922).

A court may preclude an expert’s trial testimony when the required expert disclosure notice was not given.

Laurin Maritime AB v. Imperial Chemical Industries PLC · filed 2003-01-07(d)(1)(i)

Nor did the trial court improperly preclude testimony of witnesses who were either never produced for deposition or were experts for whom no CPLR 3101 (d) (1) (i) notice had been given (see e.g. Healy v ARP Cable, 299 AD2d 152; Weeden v First Natl. Bank, 297 AD2d 803).

CPLR 3101(d) permits expert testimony despite late disclosure when the omission was unintentional and the opposing party was not prejudiced.

St. Hilaire v. White · filed 2003-05-13(d)

The trial court properly allowed the testimony of the neurologist who examined plaintiff on defendant’s behalf, notwithstanding that the substance of his testimony was not disclosed in accordance with CPLR 3101 (d), where the nondisclosure was unintentional, defendant did alert plaintiff early on of her intent to call a neurologist as an expert at trial, the court offered plaintiff an adjournment and directed defendant to bear the cost of any rebuttal witness that plaintiff might wish to call, and it does not otherwise appear that plaintiff was prejudiced by the late disclosure (cf. McDermott v Alvey, Inc., 198 AD2d 95 [1993]).

Section 3101(d) permits expert testimony despite nondisclosure when the omission was not deliberate and the opposing party suffered no actual prejudice.

Neel v. Mount Sinai Hospital · filed 2003-07-07(d)

The trial court properly allowed the testimony of plaintiff’s psychiatric expert, notwithstanding that the substance of his testimony was not disclosed in accordance with CPLR 3101 (d), where the nondisclosure does not appear to have been deliberate, defendant was aware early on of the nature of plaintiff’s malpractice claim and of plaintiff’s intent to elicit psychiatric expert testimony, the court offered defendant an adjournment “to cure any prejudice” caused by plaintiff’s late disclosure, and no actual prejudice was shown by defendant (see, St. Hilaire v White, 305 AD2d 209 [2003]).

Section 3101(d) permits an undisclosed medical expert to testify when surprise testimony at trial establishes good cause for the failure to disclose the expert.

Velez v. Policastro · filed 2003-11-10(d)

The surprise testimony regarding the number of surgical tacks used during the plaintiffs hernia operation, which was critical to the issue of proximate cause, established good cause for the plaintiff’s failure to comply with CPLR 3101 (d) (see Price v City of New York, 258 AD2d 635, 636 [1999]; Benedict v Seasille Equities Corp., 190 AD2d 649 [1993]; Simpson v Bellew, 161 AD2d 693, 698 [1990]).

Failure to serve an expert witness disclosure under CPLR 3101(d) does not warrant dismissal and, when a treating physician’s records give sufficient notice of the proposed testimony, does not warrant preclusion.

Breen v. Laric Entertainment Corp. · filed 2003-12-23(d)

We also note that defendants did not move to compel compliance with CPLR 3101 (d) until after the jury had been selected (see Freeman v Kirkland, 184 AD2d 331 [1992]), and that failure to comply with CPLR 3101 (d) is not a basis for dismissal, but, at most, preclusion of the expert’s testimony at trial (see Mulligan v New York Cornell Med. Ctr., 304 AD2d 492 [2003]; Colome v Grand Concourse 2075, 302 AD2d 251, 252 [2003]).

Section 3101(d)(1)(i) permits disclosure of a medical malpractice expert’s qualifications, subject to a protective order if the expert faces threats or intimidation.

Satkin v. McConnell · filed 2003-03-20(d)(1)(i)

Accordingly, defendants are now entitled to disclosure of the qualifications of an expert witness subject to a plaintiffs moving for a protective order should a potential witness feel vulnerable to threats or intimidation.

Section 3101(d) does not require prior notice of a treating physician’s expert opinion testimony about a patient’s need for further dental treatment.

Rokitka v. Barrett · filed 2003-03-21(d)

The court also properly permitted Mark’s treating physician to give expert opinion testimony with respect to Mark’s need for further dental treatment, and plaintiff was not required to provide prior notice of such testimony pursuant to CPLR 3101 (d) (see Krinsky v Rachleff, 276 AD2d 748, 750 [2000]).

Section 3101(d)(1) restricts disclosure of expert opinions; without special circumstances, a party cannot compel disclosure of an adversary’s expert opinions before trial.

Time Warner Entertainment Co., L.P. v. State Board of Real Property Services · filed 2003-05-15(d)(1)

Notably, in New York State, discovery with respect to expert opinion is severely restricted, being limited to that permitted under CPLR 3101 (d) (1), or (as relevant here) to the exchange of appraisals as set forth in Uniform Rules for Trial Courts § 202.59. ... In this instance the moving parties have not demonstrated the existence of special circumstances to support the disclosure of expert opinions.

Section 3101(d)(1)(i) does not require expert disclosure for a treating physician’s observations of the surgical field.

Finger v. Brande · filed 2003-06-12(d)(1)(i)

The testimony of plaintiffs subsequent treating physician did not advance a new theory of liability, and his observations as to the surgical field were not expert opinion requiring notice pursuant to CPLR 3101 (d) (1) (i).

Section 3101(d)(1)(i) gives trial courts broad discretion to permit expert testimony despite incomplete expert disclosure when the circumstances warrant it.

Gross v. Sandow · filed 2004-03-11(d)(1)(i)

Supreme Court is vested with broad discretion in addressing expert disclosure issues (see CPLR 3101 [d] [1] [i]; Washington v Albany Hous. Auth., 297 AD2d 426, 428 [2002]; see also St. Hilaire v White, 305 AD2d 209, 210 [2003]). ... it was within Supreme Court’s discretion under the circumstances of this case to permit the witnesses to testify.

Section 3101(d)(1)(i) permits a court to exclude opinion testimony from witnesses identified only as eyewitnesses, rather than as experts.

Biggs v. O'Neill · filed 2003-10-30(d)(1)(i)

We also find no error with respect to Supreme Court’s order prohibiting plaintiffs’ subsequently hired contractors from testifying as to ... their opinions since they were identified simply as eyewitnesses and not expert witnesses (see CPLR 3101 [d] [1] [i]; Myers v Myers, 255 AD2d 711, 713 [1998]; Zarrelli v Littauer Hosp., 176 AD2d 1181 [1991]).

Section 3101(d)(1)(i) permits expert testimony on a theory when the opposing party had adequate notice of it.

Chiu-Caranese v. DeMeo · filed 2003-12-29(d)(1)(i)

The record clearly establishes that the injured plaintiff had adequate notice of this theory (see CPLR 3101 [d] [1] [i]; Cutsogeorge v Hertz Corp., 264 AD2d 752 [1999]).

Section 3101(d)(1)(i) requires a party to disclose in reasonable detail each expert’s expected testimony, opinions, and the grounds for those opinions.

Dalrymple v. Koka · filed 2003-12-29(d)(1)(i)

Pursuant to CPLR 3101 (d) (1) (i), the defendants were required to disclose “in reasonable detail the subject matter on which each expert is expected to testify, the substance of the facts and opinions on which each expert is expected to testify . . . and a summary of the grounds for each expert’s opinion.”

Section 3101(d)(1)(iii) requires special circumstances to depose an opposing party’s expert witness.

Middleton v. Dovale · filed 2004-02-02(d)(1)(iii)

Finally, the plaintiffs failed to demonstrate the existence of special circumstances as to permit them to depose the nonparty Paul J. Angelíes, the expert witness of the defendant Robert Dovale (see CPLR 3101 [d] [1] [iii]; Vogel v Benwil Indus., 267 AD2d 230 [1999]).

Section 3101(d) requires expert disclosure and permits preclusion for noncompliance only when the failure was willful or intentional and prejudiced the opposing party.

Marchione v. Greenky · filed 2004-03-19(d)

“[P]reclusion 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’ ” (Young v Long Is. Univ., 297 AD2d 320, 320 [2002], quoting Shopsin v Siben & Siben, 289 AD2d 220, 221 [2001]; see St. Hilaire v White, 305 AD2d 209, 210 [2003]; Silverberg v Community Gen. Hosp. of Sullivan County, 290 AD2d 788, 788-789 [2002]; Peck v Tired Iron Transp., 209 AD2d 979 [1994]).

Section 3101(d)(1)(i) requires disclosure of an expert's subject matter and opinion grounds but protects the expert's report unless the opposing party shows substantial need and undue hardship.

Bailey v. Owens · filed 2004-04-12(d)(1)(i), (d)(2)

A party is not obligated pursuant to CPLR 3101(d)(1)(i) to disclose h[er] expert's report; that subdivision 'provides for the disclosure in reasonable detail of the subject matter on which [the] expert is expected to testify and a summary of the grounds for [the] expert's opinion' ( Matter of Love Canal Actions, 161 AD2d 1169, 1170). The report itself constitutes material prepared for litigation and is not subject to disclosure unless the party seeking disclosure has a substantial need for the report and is unable without undue hardship to obtain its substantial equivalent by other means ( see CPLR 3101[d][2]; Marziano v City of Yonkers , 105 AD2d 832)" ( Barrowman v Niagara Mohawk Power Corp. , 252 AD2d 946, 946 [4th Dept. 1998]; see Stipes v Stanley Works , 262 AD2d 300 [2d Dept. 1999]; Rogers v Sears, Roebuck and Co. , 248 AD2d 156 [1st Dept. 1998]; Dorato v Schilp , 130 AD2d 348 [3d Dept. 1987]).

Section 3101(d)(1)(i) requires disclosure of expert witness information and permits denial of a motion to strike when the delay was not willful or intentional and caused no prejudice.

Lanoce v. Kempton · filed 2004-06-14(d)(1)(i)

There was no evidence that the plaintiffs delay in retaining the expert and serving an expert witness notice was willful or intentional, or that Citibank was prejudiced as a result (see CPLR 3101 [d] [1] [i]; Shopsin v Siben & Siben, 289 AD2d 220 [2001]).

Section 3101(d) requires timely disclosure of expert witness information and permits preclusion of expert testimony when the party lacks good cause for late disclosure.

Lissak v. Cerabona · filed 2004-08-19(d)

The proffered excuse does not rise to the level of “good cause shown” so as to avoid preclusion of the subject expert testimony under CPLR 3101 (d) (see Klatsky v Lewis, 268 AD2d 410, 411 [2000]).

CPLR 3101(d) permits a defense attorney who gives the required notice to conduct private discussions with a treating physician in preparing trial testimony without disclosing those discussions.

Keshecki v. St. Vincent's Medical Center · filed 2004-09-24(d)

If after all of the above steps are complied with, the defense attorney chooses to call the plaintiffs treating physician as either a fact witness or as an expert witness, pursuant to CPLR 3101 (d) notice, the defense attorney shall not be precluded from conducting subsequent private discussions with the physician in preparation for their trial testimony and the contents of such further discussions need not be disclosed.

Section 3101(d) governs expert witness disclosure and allows the court to exercise discretion over a late notice.

Rini v. Blanck · filed 2004-09-27(d)

The Supreme Court providently exercised its discretion in denying the plaintiffs’ motion, inter alia, for leave to serve a late notice pursuant to CPLR 3101 (d).

Section 3101(d) permits a substitute expert to testify after a late disclosure when the substitution is not willful or prejudicial and the opposing side is promptly informed of the testimony.

Mateo v. 83 Post Avenue Associates · filed 2004-11-09(d)

The trial court properly permitted plaintiffs new expert to testify, there being no indication that the last-minute substitution was either willful or prejudicial (see Gilbert v Luvin, 286 AD2d 600, 601 [2001]). Plaintiff’s attorney acted promptly to advise all concerned of the scheduling error and of the substance of the new expert’s expected testimony, which was in all essential respects similar to the expected testimony of plaintiffs treating physician and circumscribed to what was contained in plaintiffs medical records.

CPLR 3101(d)(1) sets no specific time frame for a party to respond to a demand for expert witness information.

Cillo v. Resjefal Corp. · filed 2004-12-28(d)(1)

There is no substance to Brown’s contention that plaintiffs’ attempt to supplement their expert witness disclosure was in contravention of CPLR 3101 (d) (1). That section imposes no specific time frame for a party to respond to a demand for witness information.

Section 3101(d) requires notice of expert testimony about the applicable standard of care in a medical malpractice claim.

Pauling v. Orentreich Medical Group · filed 2005-01-06(d)

Nor does plaintiff have a claim for local, i.e., topical, injuries, where she failed to provide CPLR 3101 (d) notice of expert testimony as to the acceptable standards of dermatological care, or to show that her rheumatologist, originally offered as a causation expert with respect to her systemic injuries, had the requisite knowledge of dermatology (compare Erbstein v Savasatit, 274 AD2d 445, 445 [2000], with Weinstein v Daman, 132 AD2d 547, 550 [1987], lv dismissed 70 NY2d 951 [1988]).

Section 3101(d)(1)(i) requires expert disclosure to comply with its stated requirements.

Amodio v. Bianco · filed 2005-02-04(d)(1)(i)

The court properly determined that defendants’ expert disclosure is sufficient and in compliance with the requirements of CPLR 3101 (d) (1) (i) (see White v County of Erie [appeal No. 2], 309 AD2d 1299, 1302 [2003]; Castellani v Bagdasarian, 286 AD2d 870, 871 [2001]; Barrowman v Niagara Mohawk Power Corp., 252 AD2d 946, 946-947 [1998], lv denied 92 NY2d 817 [1998]).

Section 3101(d) requires expert disclosure, but delayed disclosure alone does not warrant preclusion when the disclosure is sufficient.

Corporate Interiors, Inc. v. Pappas · filed 2004-04-07(d)

Defendants in their fifth in limine motion seek to preclude plaintiff's expert witness from testifying at trial, on the grounds that the notice provided by plaintiff is untimely, inadequate and does not comport with CPLR 3101. Although plaintiff was required to file its note of issue on September 21, 2001, the parties did not complete all discovery, including depositions, until shortly before the first day of trial. Plaintiff's delay in serving a notice identifying the expert witness does not, in itself, warrant an order of preclusion (CPLR 3101[d]). Plaintiff's expert disclosure statement is sufficient, and in the event the plaintiff elects to have his expert testify at trial, the court will determine at that time whether he is qualified as an expert as regards plaintiff's claims for damages. Defendant's fifth in limine motion therefore is denied.

Section 3101(d)(1) limits expert testimony to matters detailed in the expert disclosure report.

Lewis v. Port Authority of New York & New Jersey · filed 2004-06-29(d)(1)

The court also properly exercised its discretion in limiting the testimony of defendants’ experts to matters detailed in the expert disclosure reports (see CPLR 3101 [d] [1]).

Section 3101(d) governs expert disclosure and does not permit preclusion for a disclosure failure absent intentional or willful nondisclosure and prejudice.

Ruzycki v. Baker · filed 2004-07-09(d)

Preclusion for failure to comply with CPLR 3101 (d) is improper where there is no evidence of intentional or willful failure to disclose and no prejudice to the party seeking disclosure (see Marchione v Greenky, 5 AD3d 1044, 1045 [2004]; Young v Long Is. Univ., 297 AD2d 320 [2002]; Hersh v Przydatek [appeal No. 2], 286 AD2d 984, 985 [2001]; Cutsogeorge v Hertz Corp., 264 AD2d 752, 753-754 [1999]).

Section 3101(d)(1)(i) requires good cause for late solicitation or disclosure of expert materials.

Conroe v. Barmore-Sellstrom, Inc. · filed 2004-11-19(d)(1)(i)

Although the parties employed the summary jury trial procedure, the rules for summary jury trials do not alter the parties’ rights or obligations of pretrial disclosure. We thus conclude that it was unfair to defendant for the court to admit the expert materials in question under the circumstances of this case. Plaintiff did not show “good cause” (CPLR 3101 [d] [1] [i]; 22 NYCRR 202.17 [h]) for soliciting the expert opinions such a short time before trial, nor for failing to disclose until the literal eve of trial such expert materials as were already in her hands (see Mazurek v Home Depot U.S.A., 303 AD2d 960, 961 [2003]; Kassis v Teachers Ins. & Annuity Assn., 258 AD2d 271, 271-272 [1999]; Baden v D.L. Peterson Trust, 190 AD2d 705, 706 [1993]; Corning v Carlin, 178 AD2d 576, 577 [1991]).

Section 3101(d)(1)(i) permits preclusion of expert testimony on matters omitted from the expert’s disclosure statement.

1515 Summer St. Corp. v. Parikh · filed 2004-12-28(d)(1)(i)

The trial court properly precluded the Stillmans’ experts from testifying about matters that were not included in their CPLR 3101 (d) (1) (i) disclosure statements (see Matter of Richard S., 208 AD2d 750 [1994], lv denied 86 NY2d 704 [1995]).

Section 3101(d) governs expert disclosure and permits striking proposed testimony that exceeds the allegations in the bill of particulars.

Arguinzoni v. Parkway Hospital · filed 2005-01-31(d)

Upon granting the motion to clarify, the Supreme Court providently amended the order dated August 8, 2003, by, in effect, deleting the provision thereof denying those branches of the defendants’ prior motions which were to strike the plaintiffs expert disclosure pursuant to CPLR 3101 (d) and substituting therefor a provision granting those branches of the motions because the proposed testimony exceeded the bounds of the allegations in the plaintiffs bill of particulars (see Palchik v Eisenberg, 278 AD2d 293, 294 [2000]; Ciriello v Virgues, 156 AD2d 417, 419 [1989]).

Section 3101(d)(1)(i) governs the timing of expert disclosure in civil actions.

Valvo v. Loyal Order of Moose 1614 · filed 2005-02-04(d)(1)(i)

We reject the contention of defendant in appeal No. 1 that Supreme Court erred in denying that part of its motion seeking to amend the court’s scheduling order by directing plaintiffs to serve their expert disclosure 30 days before service of defendant’s expert disclosure (see CPLR 3101 [d] [1] [ij; 22 NYCRR 202.17).

Section 3101(d)(1)(i) permits redacting expert affiants’ names and signatures to protect their identities.

Vega v. Mount Sinai-Nyu Medical Center & Health System · filed 2004-12-02(d)(1)(i)

The motion court’s refusal to consider these affirmations simply because the names and signatures had been redacted to protect the identity of the affiants, as is permitted by CPLR 3101 (d) (1) (i), was unwarranted.

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.

Kaplan v. Rosiello · filed 2005-03-28(d)(1)(i)

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