N.Y. C.P.L.R. § 3101

CPLR 3101(d)(1) requires a response to an expert witness disclosure request; failure to respond without a reasonable excuse can warrant dismissal.

Vann v. Rothenberg · filed 2005-05-17(d)(1)

Plaintiff, who sustained serious personal injuries allegedly due to dental malpractice committed by defendants, failed to respond to defendants’ request for an expert witness exchange pursuant to CPLR 3101 (d) (1) and failed to offer a reasonable excuse for not complying with discovery requests (Kalkan v Nyack Hosp., 214 AD2d 538, 539 [1995], lv denied 86 NY2d 703 [1995]).

Section 3101(d)(1) limits pretrial discovery from experts, and child custody representation standards do not justify broader contact with an expert.

Matter of Kenneth C. v. Delonda R. · filed 2006-01-04(d)(1)

Given the pre-trial discovery limitations imposed by CPLR 3101(d)(1), however, the breadth of Standard B-5 may not be reconcilable with that statute. For this reason Respondent's counsel's reliance on these child custody standards and commentaries to condone his conduct is misplaced.

Section 3101(d)(1)(i) provides for a response to a demand for expert witness information; a ruling on the admissibility of an anticipated defense may be premature before that response is served.

Sagiv v. Gamache · filed 2006-02-14(d)(1)(i)

Finally, contrary to the plaintiffs’ contention, a determination as to the admissibility of this anticipated defense prior, inter alia, to the defendants’ service of a response to their demand for expert witness information (see CPLR 3101 [d] [1] [i]) is premature.

Section 3101(d)(1)(i) sets no specific deadline for expert witness disclosure, but a trial court may preclude expert testimony when a party fails to reasonably comply.

Schwartzberg v. Kingsbridge Heights Care Center, Inc. · filed 2006-04-04(d)(1)(i)

Although CPLR 3101 (d) (1) (i) does not establish a specific time frame for expert witness disclosure, a trial court has the discretion to preclude expert testimony for the failure to reasonably comply with the statute (see generally Silverberg v Community Gen. Hosp. of Sullivan County, 290 AD2d 788 [2002]).

Section 3101(d)(1)(i) requires an expert disclosure response with enough detail to satisfy its requirements; a conclusory response is insufficient.

McArthur v. Muhammad · filed 2005-03-28(d)(1)(i)

The plaintiffs amended response to the demand by the defendant County of Suffolk for expert disclosure was conclusory and did not satisfy the requirements of CPLR 3101 (d) (1) (i) (see Curatola v Staten Is. Med. Group, 243 AD2d 673 [1997]; Laukaitis v Ski Stop, 202 AD2d 554, 556 [1994]; Lafontant v Hollymatic Corp., 183 AD2d 702, 703 [1992]).

Section 3101(d)(1)(i) permits preclusion of expert testimony beyond the expert disclosure when omitted theories prejudice the opposing party.

Lidge v. Niagara Falls Memorial Medical Center · filed 2005-04-29(d)(1)(i)

We further conclude that the court properly precluded testimony from plaintiffs’ expert that exceeded the scope of the expert disclosure inasmuch as defendants established that they were prejudiced by plaintiffs’ failure to include alleged theories of negligence in the expert disclosure (see Conroe v Barmore-Sellstrom, Inc., 12 AD3d 1121, 1123 [2004]; Atkinson v Golub Corp. Co., 278 AD2d 905, 906 [2000]; cf. Neumire v Kraft Foods, 291 AD2d 784, 786 [2002], lv denied 98 NY2d 613 [2002]; Maldonado v Cotter, 256 AD2d 1073, 1074 [1998]).

Section 3101(d)(1) did not support precluding a defense expert’s rebuttal testimony when the plaintiff’s expert first offered a causation opinion at trial.

Moon Ok Kwon v. Martin · filed 2005-06-27(d)(1)

The plaintiffs’ contention that the testimony was properly precluded on the ground that the defendants violated CPLR 3101 (d) (1) is without merit (see Wagman v Bradshaw, 292 AD2d 84, 87 [2002]).

Section 3101(d)(1)(i) permits preclusion of testimony about future surgery when the proposed surgery was absent from the plaintiff’s disclosures and records and the defendant could have retained a specialist to address it.

Thomas v. 14 Rollins Street Realty Corp. · filed 2006-01-03(d)(1)(i)

The trial court properly precluded plaintiffs treating physician from testifying about the need for future knee replacement surgery, where such surgery was not mentioned in either plaintiffs bill of particulars or expert disclosure statement, or even in his physician’s own records, and where defendants could have been expected to retain their own knee specialist to assess possible future knee surgery (CPLR 3101 [d] [1] [i]).

Section 3101(d) supports excluding an expert affidavit that violates its disclosure requirements and an express discovery order.

Wager v. Hainline · filed 2006-05-02(d)

The Supreme Court should not have considered the expert neurologist’s affidavit submitted by the plaintiffs because it violated the express terms of the discovery order and CPLR 3101 (d) (see Ortega v New York City Tr. Auth. 262 AD2d 470 [1999]; Grassel v Albany Med. Ctr. Hosp., 223 AD2d 803 [1996], citing, inter alia, Lasek v Nachtigall, 189 AD2d 749 [1993]).

Section 3101(d)(1)(i) permits a court to preclude expert testimony on a subject omitted from pretrial expert disclosure when the party shows no good cause for the omission.

Desert Storm Construction Corp. v. SSSS Ltd. · filed 2005-05-02(d)(1)(i)

The trial court providently exercised its discretion in precluding the defendants’ expert witness from testifying regarding a subject that was not included in the defendants’ pretrial expert disclosure (see Fava v City of New York, 5 AD3d 724 [2004]; CPLR 3101 [d] [1] [i]). The defendants failed to show good cause for the absence of the pretrial disclosure (see Fava v City of New York, supra; Quinn v Artcraft Constr., 203 AD2d 444, 445 [1994]).

Section 3101(d)(1)(i) permits an expert disclosure to identify previously furnished reports as the substance of the expert’s expected testimony when the expert is limited to the facts and opinions in those reports.

SK Medical Services, P.C. v. New York Central Mutual Fire Insurance · filed 2006-06-09(d)(1)(i)

Accordingly, defendant’s 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 [1998], lv denied 92 NY2d 817 [1998]) and “demonstrable prejudice or surprise” to the plaintiff had not been shown (Rook v 60 Key Ctr., 239 AD2d 926, 927 [1997]).

Section 3101(d)(1)(i) requires disclosure of the substance of an expert’s theory; without good cause, disclosure of a new theory on the eve of trial can warrant a new trial when it substantially prejudices the opposing party.

Durant v. Shuren · filed 2006-10-24(d)(1)(i)

We agree with the appellant that the Supreme Court erred in permitting the plaintiffs’ expert to testify on a new theory of liability where the plaintiffs failed to demonstrate good cause for not disclosing the substance of their expert’s new theory until the day before the trial (see Lissak v Cerabona, 10 AD3d 308 [2004]; Conroe v Barmore-Sellstrom, Inc., 12 AJD3d 1121 [2004]; CPLR 3101 (d) (1) [i]).

Section 3101(d)(1)(i) requires disclosure of expert witness information; responses that satisfy its requirements do not warrant preclusion or further disclosure.

Shirinova v. New York City Health & Hospitals Corp. · filed 2006-11-08(d)(1)(i)

Contrary to the plaintiffs’ contention, the defendants’ responses to their demands for expert witness information satisfied the requirements of CPLR 3101 (see CPLR 3101 [d] [1] [i]; Hegler v Loews Roosevelt Field Cinemas, 280 AD2d 645 [2001]).

Section 3101(d) permits a court to limit expert testimony to the original report and disclosure notice when a party fails to show good cause for serving an amended notice during trial.

Tojek v. Root · filed 2006-11-17(d)

In addition, the court did not abuse its discretion in limiting the testimony of defendants’ examining physician to the information contained in his original report and defendants’ CPLR 3101 (d) notice. Although the subject matter of the precluded testimony was contained in defendants’ amended CPLR 3101 (d) notice, defendants failed to establish good cause for failing to provide that amended notice until the middle of trial (see generally Dombrowski v Moore, 299 AD2d 949, 950-951 [2002]; Klatsky v Lewis, 268 AD2d 410, 411 [2000]).

Section 3101(d)(1)(i) governs expert witness disclosure; disclosure that meets its requirements does not warrant precluding the expert’s testimony.

Green v. Kingdom Garage Corp. · filed 2006-11-29(d)(1)(i)

The disclosure with respect to that witness, provided to plaintiffs by Kingdom Garage Corporation, 135 Parking Corporation and Guiterrez pursuant to CPLR 3101 (d), complies with the requirements of that statute (see CPLR 3101 [d] [1] [i]; Barrowman v Niagara Mohawk Power Corp., 252 AD2d 946 [1998], lv denied 92 NY2d 817 [1998]).

Section 3101(d) permits an expert to testify when the expert witness statement is sufficiently consistent with the testimony to avoid misleading the opposing party or causing prejudice or surprise.

Suhr v. Long Beach Medical Center · filed 2006-12-05(d)

The plaintiff further contends that the trial court improvidently exercised its discretion in permitting one of the defendants’ expert witnesses, Dr. Frank M. Hudak, to testify beyond the scope of his expert witness statement (see CPLR 3101 [d]). We disagree. ... Under the circumstances presented, “the expert witness statement was not so inadequate or inconsistent with the expert’s testimony as to have been misleading, or to have resulted in prejudice or surprise” (Gagliardotto v Huntington Hosp., 25 AD3d 758, 759 [2006], lv denied 7 NY3d 710 [2006]; see McGlauflin v Wadhwa, 265 AD2d 534 [1999]).

The expert witness disclosure requirement does not apply to fact witnesses.

O'Neil v. Klass · filed 2007-01-16(d)(1)

The subject witness was a fact witness and not an expert witness. Thus, the disclosure requirement contained in CPLR 3101 (d) (1) was inapplicable (see Sheppard v Blitman/Atlas Bldg. Corp., 288 AD2d 33, 35 [2001]).

CPLR 3101 (d) requires limited disclosure about a designated testifying expert but does not require production of documents created during a litigation consultancy.

Delta Financial Corp. v. Morrison · filed 2006-11-14(d)(1)(i)

Even if BPA were designated as an expert to testify at trial today, CPLR 3101 (d), which requires the limited production of information to the other side regarding qualifications of the expert, the subject matter of the expert’s testimony, the substance of the facts and opinions on which the expert is expected to testify, and summary of the grounds for the expert’s opinion, does not require the disclosure of the disputed documents.

Section 3101(d) does not require prior expert disclosure for opinion testimony by a treating physician.

Andrew v. Hurh · filed 2006-11-17(d)

Contrary to the contention of plaintiff, defendants were not required to provide plaintiff with CPLR 3101 (d) expert disclosure concerning Scalzo, inasmuch as “a treating physician may give expert opinion testimony . . . and may do so without prior notice pursuant to CPLR 3101 (d)” (Krinsky v Rachleff, 276 AD2d 748, 750 [2000]; see also Finger v Brande, 306 AD2d 104 [2003]; but see Thomas v 14 Rollins St. Realty Corp., 25 AD3d 317 [2006]).

Section 3101(d)(1)(i) permits preclusion for late or incomplete expert disclosure when the failure is willful and prejudices the opposing party.

Mead v. Dr. Rajadhyax' Dental Group · filed 2006-11-30(d)(1)(i)

Although the demand is a continuing request (see Pizzi v Muccia, supra at 341), with no set time period for its compliance (see CPLR 3101 [d]; Gushlaw v Roll, 290 AD2d 667, 669 [2002]), where a party hires an expert in advance of trial and then fails to comply or supplement an expert disclosure demand, preclusion may be appropriate if there is prejudice and a willful failure to disclose (see Bauernfeind v Albany Med. Ctr. Hosp., 195 AD2d 819, 820 [1993], appeal dismissed and lv denied 82 NY2d 885 [1993]).

CPLR 3101(d) permits preclusion for failure to disclose expert witness information only upon evidence of intentional or willful nondisclosure and a showing of prejudice.

Johnson v. Greenberg · filed 2006-12-05(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” (Shopsin v Siben & Siben, 289 AD2d 220, 221 [2001]; see Lanoce v Kempton, 8 AD3d 449 [2004]; McCluskey v Shapiro, 273 AD2d 284 [2000]; Vega v LaPalorcia, 281 AD2d 623 [2001]; see also Marchione v Greenky, 5 AD3d 1044 [2004]).

CPLR 3101(d)(1)(i) does not require expert witness information by a fixed time, and failure to disclose does not require preclusion absent intentional or willful noncompliance and prejudice.

Hernandez-Vega v. Zwanger-Pesiri Radiology Group · filed 2007-04-17(d)(1)(i)

Contrary to the plaintiffs’ contention, the Supreme Court providently exercised its discretion in considering the affidavits of the respondents’ experts as there was no evidence that the respondents’ failure to disclose was intentional or willful and there was no showing of prejudice to the plaintiffs (see Lanoce v Kempton, supra; Shopsin v Siben & Siben, supra).

Section 3101(d)(1)(i) requires disclosure of an expert’s expected subject matter, the substance of the expert’s opinions, and a summary of the grounds for those opinions.

C v. St. Luke's-Roosevelt Hospital Center · filed 2007-06-18(d)(1)(i)

There can be no doubt that at this point plaintiff has disclosed the subject matter of Dr. Char ash and Dr. Sudhalter’s opinions, the substance of their opinions and a summary of the grounds of their opinions (including medical literature that these doctors intend to rely on at trial). That is all the information St. Luke’s is entitled to at this juncture.

Section 3101(a) requires disclosure of witnesses whose information is material and necessary to a party’s case, including witnesses to prior use of property.

Rivera v. Glen Oaks Village Owners, Inc. · filed 2007-06-26(a)

In accordance with the liberal policy underlying CPLR 3101, the defendant should have disclosed the identities of these witnesses (see Zellman v Metropolitan Transp. Auth., supra at 251; Zayas v Morales, 45 AD2d 610, 613 [1974]).

CPLR 3101(d)(1)(i) sets no specific deadline for expert witness disclosure; late disclosure does not require preclusion absent a willful failure to disclose and prejudice to the opposing party.

Rowan v. Cross County Ski & Skate, Inc. · filed 2007-07-31(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, the record does not support a conclusion that the defendants’ delay in retaining their expert or in serving their expert information was intentional or willful.

Section 3101(d)(1)(i) does not require preclusion when an expert’s testimony is consistent with the pretrial disclosure and additional testimony is collateral or general background that causes no prejudice or surprise.

Popkave v. Ramapo Radiology Associates, P.C. · filed 2007-10-23(d)(1)(i)

Contrary to the plaintiffs contention, the trial court did not improvidently exercise its discretion in refusing to preclude one of the defendants’ medical experts from testifying on the ground that his testimony varied from the expert witness statement served before trial (see CPLR 3101 [d] [1] [i]; McGlauflin v Wadhwa, 265 AD2d 534 [1999]). ... Moreover, any additional testimony the witness gave regarding the plaintiff’s social history and the causes of breast cancer in general either was of collateral significance or constituted general background information, which did not render the pretrial disclosure statement inadequate or misleading, and did not result in prejudice or surprise to the plaintiff (see Casimir v Bar-Zvi, 36 AD3d 578 [2007]; Suhr v Long Beach Med. Ctr., 35 AD3d 440 [2006]; Gagliardotto v Huntington Hosp., 25 AD3d 758 [2006]; Andaloro v Town of Ramapo, 242 AD2d 354 [1997]).

CPLR 3101(d)(1)(i) requires expert witness disclosure, and failure to comply can justify precluding the expert’s testimony.

Fox v. Fox · filed 2007-10-30(d)(1)(i)

The Supreme Court correctly precluded testimony by the defendant’s expert witnesses because the defendant had not complied with the requirements of CPLR 3101 (d) (1) (i) for expert witness disclosure (see Schwartzberg v Kingsbridge Hgts. Care Ctr., Inc., 28 AD3d 463, 464-465 [2006]).

Section 3101(d)(1) permits expert testimony when the substance of the experts’ opinions was timely disclosed and later reports add no new information.

Blanchard v. Lifegear, Inc. · filed 2007-11-09(d)(1)

Contrary to the court’s determination, defendants timely disclosed the substance of the experts’ testimony pursuant to CPLR 3101 (d) (1), and the subsequent reports of those experts contained no information that was not contained in the expert disclosures or the reports that previously had been provided.

Section 3101(d)(1)(i) requires reasonable detail about the subjects, facts, and opinions an expert is expected to address.

Miller v. Galler · filed 2007-11-09(d)(1)(i)

A party must “disclose in reasonable detail the subject matter on which each expert is expected to testify [and] the substance of the facts and opinions on which each expert is expected to testify” (CPLR 3101 [d] [1] [i]; see generally Maldonado v Cotter, 256 AD2d 1073, 1074 [1998]; Andaloro v Town of Ramapo, 242 AD2d 354, 355 [1997], lv denied 91 NY2d 808 [1998]).

CPLR 3101(d)(1)(i) requires disclosure of a treating physician or nurse expected to give expert testimony; an undisclosed nurse may give factual testimony but not opinions.

Norton v. Nguyen · filed 2008-03-06(d)(1)(i)

CPLR 3101 (d) (1) (i) requires disclosure of any medical professional, even a treating physician or nurse, who is expected to give expert testimony (see Chapman v State of New York, 189 AD2d 1075,1075 [1993]). Because defendant did not disclose the nurse as an expert, the court appropriately permitted her to provide factual testimony but not opinions.

CPLR 3101(d) requires an expert notice to describe in reasonable detail the subject matter and substance of the expert’s anticipated testimony.

Huang v. New York City Transit Authority · filed 2008-03-11(d)

Plaintiff’s expert notice set forth in reasonable detail the subject matter and substance of the expert’s anticipated testimony, in compliance with CPLR 3101 (d) (see Nedell v St. George's Golf & Country Club, 203 AD2d 121 [1994]).

Expert witness disclosure under CPLR 3101(d) may be stricken when the proposed testimony exceeds the allegations in the bill of particulars.

Morris v. Queens Long Island Medical Group · filed 2008-03-25(d)

The Supreme Court providently exercised its discretion in granting that branch of the motion of the defendants Queens Long Island Medical Group, P.C., and Neelima Phatak (hereinafter the respondents) which was to strike stated portions of the plaintiffs expert witness disclosure pursuant to CPLR 3101 (d), since the proposed testimony exceeded the bounds of the allegations in the plaintiffs bill of particulars (see Gray v City of New York, 33 AD3d 857, 859 [2006]; Arguinzoni v Parkway Hosp., 14 AD3d 633, 634 [2005]; Palchik v Eisenberg, 278 AD2d 293, 294 [2000]).

An expert should not be precluded for failure to comply with expert disclosure requirements when the failure was neither intentional nor willful and caused no prejudice.

Tronolone v. Praxair, Inc. · filed 2007-04-20(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” ... Here, there is no evidence of an intentional or willful failure to disclose by defendant, nor did plaintiff establish that he was prejudiced by defendant’s failure to comply with CPLR 3101 (d).

Preclusion for failure to comply with CPLR 3101(d) requires evidence of an intentional or willful failure to disclose and a showing of prejudice.

Gayz v. Kirby · filed 2007-06-26(d)

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’ ” (Johnson v Greenberg, 35 AD3d 380 [2006], quoting Shopsin v Siben & Siben, 289 AD2d 220, 221 [2001]).

Section 3101(d) does not bar a treating physician from testifying about future surgery solely because prior notice was lacking.

Butler v. Grimes · filed 2007-05-01(d)

Contrary to the appellants’ contention, the trial court properly permitted the plaintiffs treating physician to testify regarding future surgery, notwithstanding a lack of prior notice pursuant to CPLR 3101 (d) (see Hunt v Ryzman, 292 AD2d 345 [2002]; Overeem v Neuhoff, 254 AD2d 398 [1998]).

Section 3101(d)(1) requires a party seeking disclosure of opposing expert witnesses and reports to demonstrate entitlement to it.

Kane v. Triborough Bridge & Tunnel Authority · filed 2007-05-29(d)(1)

A prior order of the court denied such disclosure (see Degliuomini v Degliuomini, 12 AD3d 634 [2004]; Post v Post, 141 AD2d 518 [1988]), and the plaintiff failed to demonstrate an entitlement to such disclosure (see CPLR 3101 [d] [1]; North Shore Towers Apts. v Zurich Ins. Co., 262 AD2d 468 [1999]; 232 Broadway Corp. v New York Prop. Ins. Underwriting Assn., 171 AD2d 861 [1991]; Marziano v City of Yonkers, 105 AD2d 832 [1984]).

Expert disclosure statements may satisfy CPLR 3101(d)(1)(i) despite a challenge to their sufficiency.

Anderson v. House of Good Samaritan Hospital · filed 2007-07-18(d)(1)(i)

We also conclude that defendants’ expert disclosure statements were sufficient (see CPLR 3101 [d] [1] [i]; Barrowman v Niagara Mohawk Power Corp., 252 AD2d 946, 946-947 [1998], lv denied 92 NY2d 817 [1998]; Krygier v Airweld, Inc., 176 AD2d 700 [1991]).

Section 3101(d) permits a trial court to allow expert testimony despite inadequate notice when the failure to disclose was not intentional or wilful and the opposing party knew an expert would testify.

Lazier v. Strickland Avenue Corp. · filed 2008-04-01(d)

Since there was no proof that Strickland intentionally or wilfully failed to provide disclosure, and Styles Steel was aware that Strickland intended to call such a witness, it was a provident exercise of discretion for the trial court to allow such expert testimony (see Manes v Manes, 277 AD2d 359, 361-362 [2000]).

Section 3101(d) permits limiting expert testimony when late expert disclosure introduces liability theories not discernable from the bills of particulars.

Navarette v. Alexiades · filed 2008-04-15(d)

The expert witness disclosure required by CPLR 3101 (d) was submitted by the plaintiff on November 10, 2005, more than 8 years after the surgical procedure at issue was performed, more than 6 years after this action was commenced, more than 2 years after the plaintiff served his bills of particulars, and only 11 days before the trial of this action was scheduled to commence. The expert witness disclosure included new theories of liability that were not readily discernable from the allegations set forth in the bills of particulars. Thus, the Supreme Court correctly granted the motion of the defendant Michael Alexiades, and the separate motion of the defendants Barry Waldman, Gary S. Shapiro, and Hospital for Special Surgery to preclude the plaintiff’s experts from testifying at trial to the extent of directing the plaintiff to serve new expert responses from the same physicians limited to the allegations claimed in the original bill of particulars (see Durant v Shuren, 33 AD3d 843, 844 [2006]; Lissak v Cerabona, 10 AD3d 308, 309-310 [2004]).

Section 3101(d)(1)(i) does not warrant a new trial for inadequate expert witness disclosure when the plaintiff did not request an expert report and any prejudice was cured by questioning the expert outside the jury’s presence.

Campo v. Neary · filed 2008-06-06(d)(1)(i)

In addition, we agree with defendants that the court erred in granting plaintiffs motion seeking, in the alternative, a new trial in the interest of justice on the ground that defendants’ expert witness disclosure was inadequate pursuant to CPLR 3101 (d) (1). There is no evidence in the record that plaintiff requested an expert witness report (see CPLR 3101 [d] [1] [i]) and, in any event, any prejudice to plaintiff was alleviated when the court allowed plaintiff to question the expert outside the presence of the jury (see generally Dubec v New York City Hous. Auth., 39 AD3d 410, 412 [2007]).

Section 3101(d)(1)(i) requires expert disclosure to identify the substance and grounds of the expert’s opinions with enough specificity to describe the alleged conduct.

In re the Accounting of Su-Lien Chen · filed 2008-07-16(d)(1)(i)

The claimed failure is that the expert disclosure lacks the specificity required by CPLR 3101 (d). That section requires disclosure of “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.” (CPLR 3101 [d] [1] [i].) ... Objectants must state the precise nature of the claimed delay by the administrator, when and for how long it occurred and the grounds for the expert’s opinion. To remedy this default in specificity objectants shall disclose such additional information within 10 days from the date hereof.

Section 3101(d)(1)(i) sets no fixed deadline for expert witness disclosure, but a court may preclude expert testimony when a party fails to comply reasonably.

Lucian v. Schwartz · filed 2008-10-14(d)(1)(i)

Although CPLR 3101 (d) (1) (i) does not establish a specific time frame for expert witness disclosure, a trial court has the discretion to preclude expert testimony for the failure to reasonably comply with the statute (see Martin v NYRAC, Inc., 258 AD2d 443 [1999]).

Section 3101(d)(1)(i) does not require preclusion of expert testimony when the disclosure fairly covers its subject and causes no prejudice or surprise.

Rabinowitz v. Elimian · filed 2008-10-21(d)(1)(i)

Although the expert witness disclosure statement served by the plaintiffs did not specifically indicate that the expert would testify that the defendant improperly aligned the severed ends of Susan’s rectal sphincter muscle, the statement did recite that the “expert will opine that the defendant utilized substandard technique with regard to the repair of a third degree extension of a midline episiotomy.” In this case, “the expert witness [disclosure] statement was not so inadequate or inconsistent with the expert’s testimony as to have been misleading, or to have resulted in prejudice or surprise” ... Thus, the Supreme Court did not improvidently exercise its discretion in refusing to preclude the testimony of the plaintiffs’ expert (see McGlauflin v Wadhwa, 265 AD2d 534 [1999]).

Section 3101(d)(1)(i) requires disclosure of the substance of an expert’s expected facts and opinions; a party may need additional information before making that disclosure.

Allen v. Calleja · filed 2008-11-12(d)(1)(i)

Rather, the facts demonstrate that the plaintiff required additional information before he could make his expert witness disclosure pursuant to CPLR 3101 (d) (see Vago v Kaylyakov, 36 AD3d 687, 689 [2007]; Assael v Metropolitan Tr. Auth., 4 AD3d at 443-444; cf Moog v City of New York, 30 AD3d at 491).

Preclusion for alleged noncompliance with the expert disclosure requirement depends on the circumstances.

Abramson v. Pick Quick Foods, Inc. · filed 2008-11-25(d)(1)(i)

Under the circumstances, preclusion was not warranted based on the defendants’ alleged noncompliance with CPLR 3101 (d) (1) (i) (see Rowan v Cross County Ski & Skate, Inc., 42 AD3d 563 [2007]; Young v Long Is. Univ., 297 AD2d 320 [2002]).

Section 3101(d) permits a treating surgeon to testify about future surgery when expert disclosure sets out the need for surgery through the surgeon’s reports and explanation of the treatment plan.

Han Soo Lee v. Riverhead Bay Motors · filed 2008-12-11(d)

The court improperly precluded the testimony of plaintiffs treating orthopedic surgeon as to his need for future back surgery. The requirement of future back surgery was set forth in expert disclosure pursuant to CPLR 3101 (d), which included two of the surgeon’s reports and the surgeon’s explanation that he was trying less invasive treatments before resorting to surgery (see McGee v Family Care Servs., 246 AD2d 308 [1998]).

Section 3101(d)(1)(i) does not warrant precluding medical experts whose exchanged reports essentially comply with its requirements when there is no willful failure to disclose or prejudice.

Cruz v. Gustitos · filed 2008-05-27(d)(1)(i)

Here, since the medical reports which the defendants exchanged with the plaintiff essentially complied with the requirements set forth in CPLR 3101 (d) (1) (i), there was no showing of a willful failure to disclose or of prejudice to the plaintiff. Accordingly, the Supreme Court improvidently exercised its discretion in granting the plaintiffs application pursuant to CPLR 3101 (d) to preclude, and the defendants are entitled to a new trial on the issue of damages.

Section 3101(d) permits a court to exclude an appraisal expert contacted in the middle of trial after the original appraiser becomes unavailable to testify.

Scher v. Yeshivath Makowa Corp. · filed 2008-09-16(d)

Moreover, the Supreme Court providently exercised its discretion in excluding the testimony of an expert witness the defendant contacted for an appraisal in the middle of the trial, after its original appraiser was unable to testify regarding the value of the property at the time of the contract (see CPLR 3101 [d]; Vigilant Ins. Co. v Barnes, 199 AD2d 257 [1993]; Zarrelli v Littauer Hosp., 176 AD2d 1181, 1182 [1991]).

Section 3101(d)(1)(i) requires certain disclosures about a retained expert but does not require disclosure of the expert’s report.

In re the Estate of Greene · filed 2008-06-02(d)(1)(i)

As with all of the parties, each must make certain disclosures concerning an expert retained, but no party is required to reveal an expert’s report (see CPLR 3101 [d] [1] [i]).

Section 3101(d) does not require preclusion of expert testimony for a disclosure failure when there is no evidence of intentional or willful nondisclosure or prejudice.

Wall v. Shepard · filed 2008-07-03(d)

Defendant further contends that the court erred in denying his motion to preclude the testimony of a physician who examined plaintiff based on plaintiffs’ failure to submit an expert disclosure for that physician pursuant to CPLR 3101 (d). We reject that contention. “[T]here is no evidence of an intentional or willful failure to disclose by [plaintiffs], nor did [defendant] establish that he was prejudiced by [plaintiffs’] failure to comply with CPLR 3101 (d)” (Tronolone v Praxair, Inc., 39 AD3d 1146, 1147 [2007]).

Section 3101(d)(1)(i) permits a court to disregard expert opinions offered against summary judgment when the party failed to identify the experts in pretrial disclosure, gave no explanation, and did not show how the facts could otherwise be proved at trial.

Construction by Singletree, Inc. v. Lowe · filed 2008-10-28(d)(1)(i)

As it is undisputed that Lowe failed to identify any experts in pretrial disclosure whom he intended to call to testify at trial concerning whether the work was faulty or the extent of his alleged compensatory damages arising from that breach of warranty, and did not proffer any explanation for such failure, it was not an improvident exercise of discretion for the Supreme Court to have determined that the specific expert opinions set forth in the affidavits submitted in opposition to the motion for summary judgment could not be considered at trial. That circumstance, coupled with Lowe’s failure to demonstrate how the facts set forth in the experts’ affidavits could otherwise be established at trial, justified the Supreme Court’s conclusion that Lowe failed to adequately establish the existence of a material issue of fact necessitating a trial in response to J.C.’s prima facie showing of entitlement to judgment as a matter of law.

Section 3101(d)(1)(i) permits a court to refuse to consider an expert affidavit submitted in support of a motion to renew.

Vereczkey v. Sheik · filed 2008-12-02(d)(1)(i)

The Supreme Court providently exercised its discretion in refusing to consider the affidavit of the plaintiffs expert submitted in support of the cross motion (see CPLR 3101 [d] [1] [i]; Soldano v Bayport-Blue Point Union Free School Dist., 29 AD3d 891 [2006]; Safrin v DST Russian & Turkish Bath, Inc., 16 AD3d 656, 657 [2005]).

Section 3101(d)(1)(iii) does not preclude deposing a nonparty as a fact witness because the person served as an expert in a related action.

McCoy v. State · filed 2008-06-06(d)(1)(iii)

Contrary to the court’s conclusion, the deposition of the nonparty witness, who resides in Florida, is not precluded under CPLR 3101 (d) (1) (iii).

Section 3101(d)(1)(i) permits a party in a medical malpractice action to withhold a medical expert’s name; an unsigned, redacted expert affirmation is admissible when counsel properly explains those omissions.

Mattis v. Keen · filed 2008-09-18(d)(1)(i)

Because plaintiffs’ attorney affirmation properly explains why their medical expert’s affirmation was unsigned and redacted, it is admissible pursuant to CPLR 3101 (d) (1) (i) (see Thomas v Alleyne, 302 AD2d 36, 38 [2002]).

Section 3101(d)(1) permits a court to consider an expert affidavit on summary judgment despite alleged noncompliance with expert disclosure when compliance is disputed.

Howard v. Kennedy · filed 2009-03-24(d)(1)

Contrary to the appellants’ contention, the Supreme Court did not err in considering the affidavit of the plaintiffs’ expert, despite the plaintiffs’ alleged failure to comply with CPLR 3101 (d) (1).

Section 3101(d)(1) sets no specific deadline for expert disclosure, but a trial court may preclude expert testimony for failure to comply with it.

LaFurge v. Cohen · filed 2009-04-07(d)(1)

Although CPLR 3101 (d) (1) does not establish a specific time frame for expert witness disclosure, a trial court has discretion to preclude expert testimony for failure to comply with the statute.

Section 3101(d) requires pretrial notice of an expert’s specific subject matter; testimony on a new theory of recovery may be precluded when that theory is not discernable from the bill of particulars or disclosure responses.

Ryan v. St. Francis Hospital · filed 2009-05-19(d)

Under the circumstances, the Supreme Court also providently exercised its discretion in precluding the testimony of the plaintiffs’ proposed expert as to purported departures from the standard of care by certain nonparty physicians. The plaintiffs failed to give notice prior to trial of the specific subject matter of the expert’s testimony setting forth a different theory of recovery not readily discernable from the plaintiffs’ bill of particulars and the statements in their CPLR 3101 (d) responses (see Durant v Shuren, 33 AD3d 843, 844 [2006]; Dalrymple v Koka, 2 AD3d 769, 771 [2003]).

Section 3101(d) permits a court to limit an expert’s testimony when it differs from the expert disclosure notice.

Hernandez v. Vavra · filed 2009-05-28(d)

In light of the inconsistency between the information contained on the face of defendants’ CPLR 3101 (d) notice pertaining to their expert neuropsychologist, and the substance of the expert’s proposed testimony as clarified on voir dire, the trial court providently exercised its discretion in permitting the neuropsychologist to testify as to the results of his interview of decedent, while precluding him from testifying as to the results of neuropsychological tests he performed on decedent (see Inwood Sec. Alarm, Inc. v 606 Rest, Inc., 35 AD3d 194 [2006]).

CPLR 3101(d)(1)(i) does not require expert witness information by a specific time; failure to disclose does not warrant preclusion without intentional or willful nondisclosure and prejudice.

Browne v. Smith · filed 2009-09-02(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” (Hernandez-Vega v Zwanger-Pesiri Radiology Group, 39 AD3d 710, 710-711 [2007], quoting Aversa v Taubes, 194 AD2d 580, 582 [1993]). Here, the Supreme Court did not improvidently exercise its discretion in considering the expert materials submitted by the plaintiffs in opposition to the defendants’ summary judgment motion since there was no evidence that the failure to disclose was intentional or willful, and there was no showing of prejudice to the defendants (see Hernandez-Vega v Zwanger-Pesiri Radiology Group, 39 AD3d at 710; Simpson v Tenore & Guglielmo, 287 AD2d 613 [2001]).

Section 3101(d) permits an expert other than the one named in the disclosure notice to testify when the notice allows for that possibility and gives the opposing party advance notice of the testimony’s subject and substance.

S&W Home Improvement Co. v. La Casita II H.D.F.C. · filed 2009-10-15(d)

Although the expert named in the plaintiffs CPLR 3101 (d) notice to testify as to the “measurements and quality of work completed” was not the expert who testified at trial, the latter was properly permitted to testify where the notice advised that another representative of the named expert’s construction company might be called, and defendants were on notice of the subject matter and substance of the expert’s testimony well in advance of trial (cf. Hernandez v Vavra, 62 AD3d 616, 617 [2009]; Aponte v City of New York, 282 AD2d 372 [2001], lv denied 96 NY2d 720 [2001]).

Section 3101(d)(1)(i) does not require expert witness information by a specific time, and late disclosure alone does not require preclusion of the expert’s testimony.

Ocampo v. Pagan · filed 2009-12-22(d)(1)(i)

The court improvidently exercised its discretion in precluding the testimony of the defendants’ expert witness in the area of radiology. “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” (Hernandez-Vega v Zwanger-Pesiri Radiology Group, 39 AD3d 710, 710-711 [2007], quoting Aversa v Taubes, 194 AD2d 580, 582 [1993]; see Rowan v Cross County Ski & Skate, Inc., 42 AD3d 563, 564 [2007]).

Section 3101(d)(1)(i) requires expert disclosures to describe the substance of the expected facts and opinions in reasonable detail; broad generalities are insufficient.

Carter v. Isabella Geriatric Center, Inc. · filed 2010-03-04(d)(1)(i)

The challenged expert disclosure statements do not “disclose in reasonable detail. . . the substance of the facts and opinions on which each expert is expected to testify” (CPLR 3101 [d] [1] [i]).

Section 3101(d)(1)(i) requires reasonable detail about an expert’s anticipated testimony, and late, inadequate disclosure without good cause can justify precluding the expert.

Peguero v. 601 Realty Corp. · filed 2009-01-29(d)(1)(i)

Supreme Court providently exercised its discretion in precluding defendants from calling their liability expert since they served their expert disclosure only a few days before the start of the trial, failed to provide the substance of the expert’s anticipated testimony with the requisite “reasonable detail” mandated by CPLR 3101 (d) (1) (i), and failed to demonstrate good cause for their failure to comply with that statute (see Lis-sak v Cerabona, 10 AD3d 308, 309 [2004]; Hudson v Manhattan & Bronx Surface Tr. Operating Auth., 188 AD2d 355 [1992]).

Section 3101(d)(1) permits exclusion of an expert affidavit when the expert is identified only after discovery is certified complete and no valid excuse for the delay is offered.

Wartski v. C.W. Post Campus of Long Island University · filed 2009-06-16(d)(1)

The plaintiffs expert affidavit should not have been considered in determining the motion since the expert was not identified by the plaintiff until after the note of issue and certificate of readiness were filed attesting to the completion of discovery, and the plaintiff offered no valid excuse for her delay in identifying the expert (see CPLR 3101 [d] [1]; Construction by Singletree, Inc. v Lowe, 55 AD3d 861, 863 [2008]; Gerry v Commack Union Free School Dist., 52 AD3d 467, 469 [2008]; Gralnik v Brighton Beach Assoc., 3 AD3d 518 [2004]; Dawson v Cafiero, 292 AD2d 488 [2002]).

Section 3101(d)(1) allows a court to find supplemental expert disclosure adequate.

Adams v. Back · filed 2009-07-23(d)(1)

Finally, we find no abuse of discretion in Supreme Court finding that plaintiffs supplemental expert disclosure was adequate ... or in the court’s tacit rejection of defendants’ claim that plaintiffs opposition papers should not have been ... considered on timeliness grounds, particularly in the absence of any demonstration of prejudice to defendants.

Section 3101(d)(1) permits a court to disregard an expert affidavit when the expert is identified after discovery is certified complete and no valid excuse is offered for the delay.

Gerardi v. Verizon New York, Inc. · filed 2009-10-27(d)(1)

The plaintiffs expert affidavit should not have been considered in determining the motion since the expert was not identified by the plaintiff until after the note of issue and certificate of readiness were filed attesting to the completion of discovery (see Construction by Construction by Singletree, Inc. v Lowe, 55 AD3d 861, 863 [2008]), and the plaintiff offered no valid excuse for his delay in identifying his expert (see CPLR 3101 [d] [1]; Wartski v C.W. Post Campus of Long Is. Univ., 63 AD3d 916, 917 [2009]).

Section 3101 permits expert disclosure beyond the required opinion summary upon a showing of special circumstances or undue hardship; withdrawing an expert does not shield materials that were not prepared in anticipation of litigation.

In re New York City Asbestos Litigation · filed 2009-10-29(d)(1)(iii); (d)(2)

The items at issue, tiles sold prior to 1986, the boxes in which they were stored, and photographs and videos thereof, could not be obtained on the open market, and the withdrawal of defendant’s expert did not affect the disclosure requirement as the items were not work-product prepared in anticipation of litigation.

Section 3101(d)(1) sets requirements for expert disclosures.

Rivenburg v. Highland Hospital · filed 2010-04-30(d)(1)

Moreover, plaintiff’s expert disclosures complied with the requirements of CPLR 3101 (d) (1) (see Green v Kingdom Garage Corp., 34 AD3d 1373, 1374 [2006]).

CPLR 3101(d) requires notice for an expert witness but not a treating physician, and late notice does not justify precluding testimony when the prejudice arose from missing medical authorizations.

Soriano v. Inoa · filed 2010-05-06(d)

It is unclear from the trial record whether Dr. Gutstein was an expert witness as to whom CPLR 3101 (d) notice was required, or plaintiffs treating physician, as to whom no notice was required (see e.g. Breen v Laric Entertainment Corp., 2 AD3d 298, 299-300 [2003]). Moreover, it is clear that the prejudice to defendants arose from the lack of proper authorizations for medical records and not from the report annexed to plaintiffs expert notice. Accordingly, Gutstein’s testimony as to causation should not have been precluded on the ground of plaintiffs late service of the notice.

Failure to meet Section 3101(d)(1)(i)’s expert witness notice requirements may justify precluding the proposed expert testimony.

Parlante v. Cavallero · filed 2010-05-18(d)(1)(i)

With respect to the defendant’s counterclaims, in view of the plaintiffs’ failure to meet the notice requirements of CPLR 3101 (d) (1) (i), the Supreme Court did not improvidently exercise its discretion in precluding the proposed expert testimony of one of the plaintiffs’ witnesses (see Schwartzberg v Kingsbridge Hgts. Care Ctr., Inc., 28 AD3d 463, 464-465 [2006]).

Section 3101(d)(1)(i) permits a treating physician to testify about prognosis and permanency despite a missing narrative report when previously disclosed medical records give the opposing party notice and there is no surprise or prejudice.

Chase v. OHM, LLC · filed 2010-07-29(d)(1)(i)

Lastly, despite the absence of a narrative report by plaintiffs treating physician, Bradley Wiener, the court did not abuse its discretion in permitting him to testify as to the prognosis and permanency of plaintiff’s injuries (see Langhorne v County of Nassau, 40 AD3d 1045, 1047 [2007]; Hughes v Webb, 40 AD3d 1035, 1036-1037 [2007]; Iasello v Frank, 257 AD2d 362, 363 [1999]; see also CPLR 3101 [d] [1] [i]; 22 NYCRR 202.17 [h]). There could be no claim of surprise or prejudice inasmuch as Wiener’s testimony related only to the consequences and permanency of the injuries resulting from plaintiffs fall that were identified in the previously-disclosed medical records, and for which defendants’ own expert provided similar testimony.

Section 3101(d)(1)(i) requires expert witness disclosure; failure to comply can justify rejecting an expert affidavit first offered in opposition to summary judgment after the note of issue was filed.

Pellechia v. Partner Aviation Enterprises, Inc. · filed 2011-01-25(d)(1)(i)

The plaintiffs expert affidavit was properly rejected by the Supreme Court because the plaintiff never complied with any of the disclosure requirements of CPLR 3101 (d) (1) (i), and only first identified his expert witness in opposition to the defendant’s summary judgment motion, after the plaintiff filed the note of issue and certificate of readiness (see King v Gregruss Mgt. Corp., 57 AD3d 851, 852-853 [2008]).

Section 3101(d)(1)(i) provides no basis to strike expert reports for a disclosure failure when there is no evidence of an intentional or willful failure and no prejudice.

C.P. Ward, Inc. v. Deloitte & Touche LLP · filed 2010-06-11(d)(1)(i)

Contrary to defendants’ contention, there is no basis for striking those reports for plaintiffs’ failure to comply with CPLR 3101 (d) (1) (i) “where there is no evidence of intentional or willful failure to disclose and no prejudice to [defendants]” (Ruzycki v Baker, 9 AD3d 854, 855 [2004]).

Section 3101 permits an expert’s videotaped testimony when its relevant opinions were disclosed beforehand, even if the disclosure included additional opinions.

Kabalan v. Hoghooghi · filed 2010-10-01(d)(1)(i)

Although the expert disclosure included certain assertions and opinions that were not included in the expert’s videotaped testimony, the relevant assertions and opinions included in the videotaped testimony, including the assertion that defendant rested a hot part of the drill against plaintiffs face, were set forth in the expert disclosure, and thus the court properly denied that part of defendant’s motion in limine based on alleged inconsistency between the expert disclosure and the videotaped testimony (see Miller v Galler [appeal No. 2], 45 AD3d 1325, 1326 [2007]; see generally Neumire v Kraft Foods, 291 AD2d 784, 786 [2002], lv denied 98 NY2d 613 [2002]).

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

Hill v. Carpenter · filed 2010-10-21(d)(1)(iii)

Plaintiff was not entitled to such an examination without a showing of special circumstances, absent here (see CPLR 3101 [d] [1] [iii]; Ruthman, Mercadante & Hadjis v Nardiello, 288 AD2d 593, 594 [2001]; 232 Broadway Corp. v New York Prop. Ins. Underwriting Assn., 171 AD2d 861, 861 [1991]).

Section 3101(d)(1)(i) permits a court to preclude expert testimony about alleged malpractice when the expert disclosure fails to identify the alleged departures from accepted practice.

Rizzo v. Kay · filed 2010-12-21(d)(1)(i)

Under these circumstances, the trial court providently exercised its discretion in ruling that the appellant would be precluded from offering expert testimony as to whether Dr. Maniscalco committed any acts of dental malpractice (see CPLR 3101 [d] [1] [i]; Lucian v Schwartz, 55 AD3d 687, 688 [2008]; Parlante v Cavallero, 73 AD3d 1001 [2010]; Schwartzberg v Kingsbridge Hgts. Care Ctr., Inc., 28 AD3d 463, 464 [2006]), and in concluding that absent such expert testimony, the appellant could not establish a prima facie case of dental malpractice ... against Dr. Maniscalco, and therefore could not prevail upon his cross claim (see Perricone-Bernovich v Gentle Dental, 60 AD3d 744, 745 [2009]; Sohn v Sand, 180 AD2d 789, 790 [1992]).

Section 3101(d) requires disclosure of the materials underlying an expert’s opinion; allowing testimony based on concealed records and an undisclosed report can prejudice the opposing party.

Maiorani v. Adesa Corp. · filed 2011-04-05(d)

The Supreme Court also improvidently exercised its discretion in permitting the defendant’s expert, Jeffrey Ketchman, a professional engineer, to testify about documents not previously disclosed to the plaintiff. The defendant was required to produce inspection and maintenance records related to the fence but alleged, during discovery, that no such records existed. Yet, Ketchman testified, and issued a report, based, upon his review of those very records. The Ketchman report had not been disclosed to the plaintiff. In fact, the defendant’s disclosure concerning Ketchman pursuant to CPLR 3101 (d) only stated that his opinion would be based upon his examination of the “pleadings, materials provided by Sentry Security Company, deposition testimony . . . , discovery materials exchanged during the course of litigation, plaintiffs medical records and testimony at trial,” without providing a detailed list of those documents. The plaintiff was prejudiced by the defendant’s concealment of these records, as the plaintiff was deprived of the opportunity to review and use them at trial.

Section 3101(d)(1) permits a court to decline to consider an expert affidavit when the expert was disclosed late without an excuse.

Santiago v. C&S Wholesale Grocers Inc. · filed 2011-04-12(d)(1)

Furthermore, the Supreme Court did not improvidently exercise its discretion in refusing to consider the plaintiff’s expert’s affidavit, since the identity of the expert was not timely disclosed by the plaintiff and the plaintiff offered no excuse for his delay in identifying his expert (see CPLR 3101 [d] [1]; 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) does not warrant precluding expert testimony when the disclosure encompasses the proposed opinion and the opposing party cannot claim surprise or prejudice.

BYRNES, JAMES R. v. SATTERLY, M.D., CLYDE · filed 2011-06-17(d)

We agree with plaintiff that Supreme Court erred in precluding his expert from testifying with respect to the theory that defendant was negligent in failing to monitor plaintiff after prescribing the medication at issue.

An expert disclosure can sufficiently identify the subject of proposed testimony without naming the specific statutory provision, if the omission does not mislead the opposing party or cause prejudice or surprise.

Hoberg v. Shree Granesh, LLC · filed 2011-06-21(d)(1)(i)

Although the plaintiffs expert witness disclosure statement did not specify the statutory provision requiring the lobby stairway to be equipped with handrails, it was sufficient to apprise the defendant of the subject matter of the expert’s proposed testimony, and was neither “so inadequate or inconsistent with the expert’s testimony as to have been misleading, or to have resulted in prejudice or surprise” (Gagliardotto v Huntington Hosp., 25 AD3d 758, 759 [2006]; see CPLR 3101 [d] [1] [i]; Rabinowitz v Elimian, 55 AD3d 813, 814 [2008]; Popkave v Ramapo Radiology Assoc., P.C., 44 AD3d 920, 921 [2007]).

CPLR 3101(d) permits preclusion of expert testimony when proper disclosure is untimely and the disclosing party shows no good cause.

Sushchenko v. Dyker Emergency Physicians Service,P.C. · filed 2011-07-26(d)

The trial court providently exercised its discretion in precluding the plaintiffs’ expert witness from testifying regarding causation on the ground that proper CPLR 3101 (d) disclosure was not provided (see Schwartzberg v Kingsbridge Hgts. Care Ctr., Inc., 28 AD3d 463, 464 [2006]; Hubbard v Platzer, 260 AD2d 605 [1999]; Rassaei v Kessler, 252 AD2d 577 [1998]; cf. McGlauflin v Wadhwa, 265 AD2d 534 [1999]).

Section 3101(d) requires expert witness disclosure, and failure to reasonably comply can justify striking the expert’s testimony.

Burnett v. Jeffers · filed 2011-12-20(d)

The Supreme Court did not improvidently exercise its discretion in striking the testimony of one of IMC’s expert witnesses, since IMC failed to reasonably comply with the expert witness disclosure requirements of CPLR 3101 (d) (see Lucian v Schwartz, 55 AD3d 687, 688 [2008]).

Section 3101(d)(1)(i) leaves preclusion for deficient expert disclosure to the trial court’s discretion, with prejudice and willfulness relevant to that decision.

McColgan v. Brewer · filed 2011-05-12(d)(1)(i)

At the time the supplemental expert disclosure was served, a note of issue had not yet been filed. Moreover, Kirschner failed to demonstrate that plaintiff’s actions were willful or that he was prejudiced thereby. Under these circumstances, we find no abuse of Supreme Court’s discretion in denying Kirschner’s motion to preclude.

Section 3101(d) permits exclusion of undisclosed expert testimony that would surprise the opposing party when the proponent fails to show good cause for the nondisclosure.

in the New York Coordinated Proceeding v. Bausch & Lomb · filed 2011-09-15(d)

The court properly excluded plaintiffs’ epidemiologist from explaining this lack of an epidemiological signal, because the testimony had not been previously disclosed by plaintiffs and would have surprised defendant. Additionally, plaintiffs failed to demonstrate good cause for their failure to disclose the testimony (see CPLR 3101 [d]; LaFurge v Cohen, 61 AD3d 426 [2009], lv denied 13 NY3d 701 [2009]; Peguero v 601 Realty Corp., 58 AD3d 556, 564 [2009]).

CPLR 3101 (d) permits preclusion for failure to disclose expert information only when the failure is intentional or willful and causes prejudice.

Barchella Contracting Co. v. Cassone · filed 2011-10-18(d)

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’ ” (Johnson v Greenberg, 35 AD3d 380, 380 [2006], quoting Shopsin v Siben & Siben, 289 AD2d 220, 221 [2001] [internal quotation marks omitted]).

Depositions of expert witnesses require a showing of special circumstances; without that showing, subpoenas for their depositions may be quashed.

McGowan v. Great Northern Insurance · filed 2011-10-04(d)(1)(iii)

The appellant failed to establish the existence of such circumstances, and thus the Supreme Court properly granted that branch of the plaintiffs’ motion which was to quash the subject subpoenas (see CPLR 3101 [d] [1] [iii]; Fekete v GA Ins. Co. of N.Y., 279 AD2d 300 [2001]; Russo v Quincy Mut. Fire Ins. Co., 256 AD2d at 1164).

Section 3101(d) allows a treating physician to give expert opinion testimony without prior notice.

Jiang v. Dollar Rent a Car, Inc. · filed 2012-01-10(d)

A treating physician may give expert opinion testimony and may do so without prior notice pursuant to CPLR 3101 (d) (see Hughes v Webb, 40 AD3d 1035, 1037 [2007]; Hammond v Welsh, 29 AD3d 518, 519 [2006]; Krinsky v Rachleff, 276 AD2d at 750).

Section 3101(d) requires pretrial disclosure of the specific subject matter of expert testimony; a court may preclude testimony on theories not discernible from the prior disclosures.

Apikoglu v. Leitman · filed 2012-02-07(d)

The Supreme Court providently exercised its discretion in precluding the plaintiffs expert from testifying that the failure to perform CT scans on the plaintiffs decedent between April 9, 2002, and April 11, 2002, as well as the failure to perform a third surgery, were departures from the accepted standard of care. The plaintiff failed to give notice prior to trial of the specific subject matter of the expert’s testimony setting forth these different theories of recovery, which were not readily discernable from the plaintiffs bills of particulars and the statements in her CPLR 3101 (d) responses (see Ryan v St. Francis Hosp., 62 AD3d 857 [2009]; Durant v Shuren, 33 AD3d 843, 844 [2006]; Dalrymple v Koka, 2 AD3d 769, 771 [2003]).

Section 3101(d)(1) requires expert disclosure, and a court may preclude an expert’s testimony when the disclosure is deficient.

HARRIS, GAIL L. v. SEAGER, ROBERT · filed 2012-03-23(d)(1)

Finally, we reject plaintiff’s contention that the court abused its discretion in granting the motion of defendants to preclude the testimony of plaintiff’s expert based on her failure to comply with CPLR 3101 (d) (1).

An expert exchange permits the challenged testimony when it adequately informs the opposing party that the expert will give it.

Genza v. Richardson · filed 2012-05-24(d)(1)(i)

The trial court providently exercised its discretion in permitting testimony as to the existence of a preexisting brain injury, as defendants’ expert exchange adequately informed plaintiff ... that their neurologist would provide such testimony (see CPLR 3101 [d] [1] [i]).

Section 3101(d)(1) requires timely expert disclosure; a court may preclude an expert when a party refuses to disclose on time.

Liang v. Yi Jing Tan · filed 2012-08-22(d)(1)

The Supreme Court providently exercised its discretion in granting that branch of the plaintiff’s motion which was to preclude the defendants’ expert witness from testifying at trial, given the defendants’ refusal to make timely disclosure under CPLR 3101 (d) (1) (see Burnett v Jeffers, 90 AD3d 799, 800 [2011] ; Lucian v Schwartz, 55 AD3d 687, 688 [2008]; Vigilant Ins. Co. v Barnes, 199 AD2d 257, 257-258 [1993]).

Section 3101(d)(1)(i) does not require exclusion of an expert affidavit when the failure to disclose the expert’s identity was neither intentional nor willful and caused no prejudice.

Hayden v. Gordon · filed 2012-01-24(d)(1)(i)

Moreover, the Supreme Court did not improvidently exercise its discretion in considering the expert affidavit submitted by the plaintiffs, 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 appellant (see Browne v Smith, 65 AD3d 996 [2009]; Hernandez-Vega v Zwanger-Pesiri Radiology Group, 39 AD3d 710, 710-711 [2007]; Simpson v Tenore & Guglielmo, 287 AD2d 613 [2001]).

Section 3101(d)(1)(iii) permits deposition of an expert witness and production of related materials when special circumstances warrant them.

Falcone v. Karagiannis · filed 2012-03-06(d)(1)(iii)

The defendants demonstrated that their deposition of the plaintiffs expert pathologist, Dr. Wetli, and production of any additional materials related to the autopsy he performed, were warranted by special circumstances (see CPLR 3101 [d] [1] [iii]; see generally Brooklyn Floor Maintenance Co. v Providence Washington Ins. Co., 296 AD2d 520 [2002]; Melendez v Food Emporium, 243 AD2d 264 [1997]).

Section 3101(d)(1)(i) permits an expert to testify about undisclosed future damages when there is no showing of willful nondisclosure or resulting prejudice.

Rojas v. Palese · filed 2012-04-17(d)(1)(i)

Plaintiffs expert was properly allowed to testify as to future damages since there was no showing of a willful failure to disclose this testimony or of resulting prejudice to defendants (see CPLR 3101 [d] [1] [i]; Colome v Grand Concourse 2075, 302 AD2d 251 [2003]).

Section 3101(d)(1)(i) requires reasonable detail in expert disclosure, but preclusion may be premature when discovery needed to formulate the expert’s opinion remains outstanding.

Bernardis v. Town of Islip · filed 2012-05-15(d)(1)(i)

Furthermore, under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in denying, at this stage of the proceeding, that branch of the appellants’ motion which was to preclude the plaintiffs’ expert from testifying due to lack of “reasonable detail” (CPLR 3101 [d] [1] [i]) in the plaintiffs’ expert disclosure, since discovery necessary to the complete formulation of the plaintiffs’ expert’s opinion had yet to be conducted.

Section 3101(d)(1)(i) requires disclosure of the substance of an expert’s expected facts and opinions, but not every specific fact and opinion.

Mary Imogene Bassett Hospital v. Cannon Design, Inc. · filed 2012-07-19(d)(1)(i)

Notably, there is no requirement that the expert set forth the specific facts and opinions upon which he or she is expected to testify, but rather only the substance of those facts and opinions (see Barrowman v Niagara Mohawk Power Corp., 252 AD2d 946, 946-947 [1998], lv denied 92 NY2d 817 [1998]; Foley v American Ind. Paper Mills Supply Co., 222 AD2d 401, 402 [1995]; Krygier v Airweld, Inc., 176 AD2d 700, 701 [1991]; Renucci v Mercy Hosp., 124 AD2d 796, 797 [1986]).

CPLR 3101(d) permits a court to grant additional time to retain experts and provide expert witness disclosure after considering the relevant circumstances.

Jacobs v. Nussbaum · filed 2012-11-14(d)

Here, considering all of the relevant circumstances, the Supreme Court providently exercised its discretion in granting the plaintiffs application for additional time to retain expert witnesses and provide expert witness disclosure pursuant to CPLR 3101 (d) (id. at 42-43; Hayden v Gordon, 91 AD3d 819, 820 [2012]; Ocampo v Pagan, 68 AD3d 1077, 1077-1078 [2009]).

Section 3101(d)(1) does not require expert disclosure for the opinion of a medical examiner who was not retained as a party’s expert witness.

Coakley v. Parkway Hospital · filed 2013-02-13(d)(1)

Further, since the medical examiner was not retained as a party’s expert witness, her opinion was not subject to the requirements for disclosure set forth in CPLR 3101 (d) (1) (see Jing Xue Jiang v Dollar Rent a Car, Inc., 91 AD3d 603 [2012]).

Section 3101(d)(1) does not automatically bar an expert disclosed near trial, but a court may preclude testimony when the party seeks to introduce the expert on the second day of trial.

Deandino v. New York City Transit Authority · filed 2013-04-10(d)(1)

As this Court recently held in Rivers v Birnbaum (102 AD3d 26 [2012]), CPLR 3101 (d) (1) does “not automatically preclude experts disclosed near the commencement of trial from testifying at trial” {Rivers v Birnbaum, 102 AD3d at 39 [emphasis added]). However, considering that the defendants made their application to elicit the expert testimony on the second day of trial, the court did not improvidently exercise its discretion in precluding the subject testimony.

Section 3101(d) requires parties to identify expert witnesses; a party not identified as an expert may be barred from testifying as one.

Zekry v. Zekry · filed 2013-04-18(d)

Third, the husband may not testify as an “expert,” since he neither has the proper credentials nor was identified by defendants as an expert (see CPLR 3101 [d]).

Under section 3101(d)(1)(i), the absence of an expert witness demand weighs against precluding expert testimony for untimely disclosure.

CHARTER SCHOOL FOR APPLIED TECHNOLO v. BD OF ED FOR CITY OF BUFFALO · filed 2013-04-26(d)(1)(i)

Additionally, the court did not abuse its discretion in denying defendant’s motion to preclude CSAT from presenting certain documents and the testimony of an expert witness due to untimely disclosure. Initially, we note that defendant never made an expert witness demand under CPLR 3101 (d) (1) (i).

Expert witness disclosure under section 3101(d)(1)(i) depends on an expert witness demand.

Charter School for Applied Technologies v. Board of Education · filed 2013-04-26(d)(1)(i)

Additionally, the court did not abuse its discretion in denying defendant’s motion to preclude CSAT from presenting certain documents and the testimony of an expert witness due to untimely disclosure. Initially, we note that defendant never made an expert witness demand under CPLR 3101 (d) (1) (i).

Section 3101(d)(1)(i) permits a court to preclude expert testimony when a party first discloses the expert after trial begins and offers no explanation for the delay.

Nikollbibaj v. City of New York · filed 2013-05-08(d)(1)(i)

Contrary to the plaintiffs contention, the Supreme Court did not improvidently exercise its discretion in precluding the testimony of the plaintiffs expert based upon the plaintiffs noncompliance with CPLR 3101 (d) (1) (i) (see Sushchenko v Dyker Emergency Physicians Serv., P.C., 86 AD3d 638, 639 [2011]; Mohamed v New York City Tr. Auth., 80 AD3d 677, 678 [2011]; Parlante v Cavallero, 73 AD3d 1001, 1003 [2010]). Indeed, the plaintiff did not disclose her intent to call any expert witness until after the trial had begun, and she provided no explanation for that failure (see Lucian v Schwartz, 55 AD3d 687, 688 [2008]; Caccioppoli v City of New York, 50 AJD3d 1079, 1080-1081 [2008]).

Section 3101(d)(1)(i) does not require preclusion of a treating physician’s causation testimony for lack of expert notice when the physician’s records and reports were disclosed and the opponent cannot show surprise.

Hamer v. City of New York · filed 2013-05-14(d)(1)(i)

However, the failure to serve a CPLR 3101 (d) notice with regard to a treating physician, such as Dr. Geller, is not grounds for preclusion of the physician’s expert testimony as to causation where there has been disclosure of the physician’s records and reports, pursuant to CPLR 3121 and 22 NYCRR 202.17 ... Since the DOE failed to establish the critical element of surprise, the court improvidently exercised its discretion in precluding Dr. Geller from testifying as to the second injury.

Section 3101(d) permits preclusion of expert testimony that was not previously disclosed.

Rodriguez v. Ford Motor Co. · filed 2013-05-16(d)

The court properly precluded plaintiffs accident reconstruction expert from testifying about tire marks at the scene because such testimony had not previously been disclosed (see CPLR 3101 [d]).

Section 3101(d)(1)(i) leaves the court discretion to consider an expert affidavit on a timely summary judgment motion despite the party’s failure to disclose the expert before filing a note of issue.

Salcedo v. Ju · filed 2013-05-22(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]). Under the circumstances of this case, it was an improvident exercise of discretion to refuse to consider the affidavit of the plaintiffs expert submitted in opposition to the respondents’ motion (see LeMaire v Kuncham, 102 AD3d 659, 661 [2013]).

A late expert report does not warrant precluding the expert when the delay has good cause and causes no prejudice.

Kosturek v. Kosturek · filed 2013-06-12(d)

Furthermore, the trial court, upon finding that the plaintiff failed to timely file and provide the defendant with an expert’s report (see 22 NYCRR 202.16 [g]; CPLR 3101 [d]; Rivers v Birnbaum, 102 AD3d 26 [2012]), improvidently exercised its discretion in precluding the plaintiffs expert from testifying at trial on the issue of the value of the property.

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

Ramsen A. v. New York City Housing Authourity · filed 2013-12-05(d)(1)(i)

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 [1st Dept 2008]).

CPLR 3101(d) did not require exclusion of an expert opinion when the alleged conflict with the expert’s deposition testimony was unfounded and discrepancies in the records were explained.

Fritz v. Burman · filed 2013-06-26(d)

Contrary to the defendants’ contentions, Marion’s opinion was not directly contradicted by his own deposition testimony, and any disparities between that testimony and prior documentary evidence indicating that the infant was suffering from autism were explained (cf. Telfeyan v City of New York, 40 AD3d 372, 373 [2007]). Thus, the Supreme Court erred in determining that Marten’s opinion was inadmissible pursuant to CPLR 3101 (d) (see Jing Xue Jiang v Dollar Rent a Car, Inc., 91 AD3d 603, 604 [2012]; Hughes v Webb, 40 AD3d 1035 [2007]).

Section 3101(d)(1)(i) does not require expert witness information at a specific time and does not require preclusion for noncompliance absent intentional or willful failure to disclose and prejudice.

Burbige v. Siben & Ferber · filed 2014-03-05(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, the record does not support a conclusion that the plaintiff’s delay in retaining his expert or in serving his expert information was intentional or willful.

Section 3101(d)(1)(i) does not require preclusion for late expert disclosure unless the failure was intentional or willful and the opposing party was prejudiced.

Arcamone-Makinano v. Britton Property, Inc. · filed 2014-05-21(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’ ” (Burbige v Siben & Ferber, 115 AD3d 632, 633 [2014], quoting Cutsogeorge v Hertz Corp., 264 AD2d 752, 753-754 [1999]; see Kosturek v Kosturek, 107 AD3d 762, 763-764 [2013]; Barchella Contr. Co., Inc. v Cassone, 88 AD3d 832, 832 [2011]).

Section 3101(d)(1)(i) governs disclosure of expert witnesses and permits the court to exclude affidavits from experts who were not previously identified.

Cuillo v. Fairfield Property Services, L.P. · filed 2013-12-18(d)(1)(i)

Under the circumstances of this case, the Supreme Court providently exercised its discretion in declining to entertain the affidavits of the plaintiff’s experts, who were not previously identified (see CPLR 3101 [d] [1] [i]; Rivers v Birnbaum, 102 AD3d 26 [2012]; Kozlowski v Oana, 102 AD3d 751 [2013]).

Section 3101(d) requires timely disclosure of expert witnesses and permits preclusion when late disclosure lacks good cause.

Newark v. Pimentel · filed 2014-05-20(d)

The court did not improvidently exercise its discretion in precluding Wong’s two proposed expert witnesses in the absence of any “good cause” shown for the failure to disclose these witnesses until the second day of the damages trial (see CPLR 3101 [d]; Hudson v Manhattan & Bronx Surface Tr. Operating Auth., 188 AD2d 355 [1st Dept 1992]).

Section 3101(d)(1)(i) preserves a court’s discretion to consider an expert affirmation or affidavit in a timely summary judgment motion despite late expert disclosure.

Buchanan v. Mack Trucks, Inc. · filed 2014-01-22(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]; see Brande v City of White Plains, 107 AD3d 926, 927 [2013]).

Section 3101(d) treats an attorney-drafted expert disclosure as insufficient admissible evidentiary proof to defeat a summary judgment motion.

Bacani v. Rosenberg · filed 2014-02-06(d)

As this Court previously found, the opinions of plaintiffs’ expert, Dr. Harrigan, failed to raise a triable issue, and plaintiffs’ submission of an attorney-drafted CPLR 3101 (d) expert disclosure averring that an expert pathologist would testify concerning causation is not evidentiary proof in admissible form sufficient to defeat the subject motion for summary judgment (see e.g. Velasco v Green-Wood Cemetery, 48 AD3d 271, 272 [1st Dept 2008]).

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

Matter of Western Ramapo Sewer Extension Project. · filed 2014-08-20(d)(1)(i)

The Supreme Court providently exercised its discretion in precluding two of the Sewer District’s witnesses from testifying at trial as experts, based upon its noncompliance with CPLR 3101 (d) (1) (i) (see Rivers v Birnbaum, 102 AD3d 26 [2012]; Sushchenko v Dyker Emergency Physicians Serv., P.C., 86 AD3d 638, 639 [2011]; Mohamed v New York City Tr. Auth., 80 AD3d 677, 678 [2011]; Parlante v Cavallero, 73 AD3d 1001, 1003 [2010]).

Section 3101(d)(1)(i) requires a party to identify an expert witness and disclose the substance of the expert's testimony and qualifications.

France v. Packy · filed 2014-10-15(d)(1)(i)

The Supreme Court properly rejected the redacted and unsigned affirmation of the plaintiffs medical expert where the plaintiff offered no explanation for the failure to identify the expert by name or the failure to offer an unredacted affirmation for in camera review. Accordingly, that affidavit was insufficient to raise a triable issue of fact as to the defendants’ alleged malpractice (see Rose v Horton Med. Ctr., 29 AD3d 977, 978-979 [2006]; Kruck v St. John’s Episcopal Hosp., 228 AD2d 565 [1996]; CPLR 3101 [d] [1] [i]).

Section 3101(d) governs disclosure of an expert witness’s identity and whether a late disclosure warrants preclusion.

Elgart v. Berezovsky · filed 2014-12-24(d)

The plaintiff contends that the court should have denied that branch of the motion because the expert witness should have been precluded from testifying at trial as a result of the defendant’s failure to timely disclose the identity of the expert witness pursuant to CPLR 3101 (d). However, because an adjournment of the trial ameliorated any prejudice to the plaintiff resulting from the belated disclosure, the court providently exercised its discretion in declining to preclude the expert witness from testifying at trial.

Section 3101(d)(1)(i) protects medical expert identities from disclosure during trial preparation, subject to limits when their opinions are used to resolve a case.

RiveravAlbanyMedicalCenterHospital · filed 2014-07-10(d)(1)(i)

While the Legislature has allowed for some protection from disclosure of the identities of medical experts during "[t]rial preparation" (CPLR 3101 [d] [1] [i]), and, consistent with this intention, courts have found it appropriate to allow nonmovants in the summary judgment context to also withhold experts' identities from their adversaries upon the reasoning that such parties did not choose to abandon the disclosure protections provided during trial preparation (see Cerny v Williams, 32 AD3d 881, 886 [2006]; McCarty v Community Hosp. of Glen Cove, 203 AD2d 432, 433 [1994]), the Legislature has shown no broad intention of protecting experts from accountability at the point where their opinions are employed for the purpose of judicially resolving a case or a cause of action.

Section 3101(d)(1) permits a court to consider an expert report despite the absence of prior disclosure when there is no evidence of willfulness or prejudice.

Guzman v. Broadway 922 Enterprises, LLC · filed 2015-07-02(d)(1)

The court properly considered plaintiff’s expert’s report, despite the fact that there had been no CPLR 3101 (d) (1) disclosure before plaintiff opposed defendant’s motion, since there is no evidence of willfulness by plaintiff or prejudice to defendant (see Baulieu v Ardsley Assoc., L.P., 85 AD3d 554 [1st Dept 2011]).

Section 3101(d)(1) requires expert disclosure to include specified information; a deficient expert report can support preclusion of the expert’s testimony.

Maggio v. Doughtery · filed 2015-07-02(d)(1)

Furthermore, the report failed to disclose information required by CPLR 3101 (d) (1). We therefore perceive no abuse of the court’s discretion in granting preclusion (see Harris, 93 AD3d at 1309).

Section 3101 does not require disclosure during discovery of the identity of a witness called to lay the foundation for admitting a nonparty witness’s statement.

Cruz v. City of New York · filed 2015-10-29

The witness was called to lay the foundation for the admission of a nonparty witness’s statement, and he was not the type of witness whose identity was required to be disclosed during discovery (see Sheppard v Blitman/Atlas Bldg. Corp., 288 AD2d 33, 35 [1st Dept 2001]; see also CPLR 3101).

Section 3101(d)(1)(i) applies to expert disclosure when a party makes a demand.

In re April WW. · filed 2015-11-25(d)(1)(i)

We reject petitioner’s contention that it received inadequate notice of Miller’s identity. As Family Court noted in overruling petitioner’s objection, there had been no demand for expert disclosure (see CPLR 3101 [d] [1] [i]; Family Ct Act § 1038 [d]).

Section 3101(d)(1)(i) governs disclosure of expert witness information and permits consideration of a disclosed expert affidavit.

Dunham v. Ketco, Inc. · filed 2016-01-07(d)(1)(i)

As an initial matter, we find no merit in plaintiff's contention that Supreme Court erred or abused its discretion in considering the affidavit of Bruce DiStefano, defendant's president, in support of defendant's motion (see CPLR 3101 [d] [1] [i]; Matott v Ward, 48 NY2d 455, 459 [1979]).

Section 3101(d)(1) requires disclosure of information in an expert report.

MAGGIO, DOMENIC v. DOUGHTERY, RONALD JOHN · filed 2015-07-02(d)(1)

Furthermore, the report failed to disclose information required by CPLR 3101 (d) (1).

Section 3101(d)(1)(i) requires expert disclosure to state the substance of the expected facts and opinions, but not the specific facts and opinions.

Conway v. Elite Towing & Flatbedding Corp. · filed 2016-01-27(d)(1)(i)

Contrary to the plaintiffs contention, there is no requirement that the expert set forth the specific facts and opinions upon which he or she is expected to testify, but rather only the substance of those facts and opinions (see Mary Imogene Bassett Hosp. v Cannon Design, Inc., 97 AD3d at 1032; Barrowman v Niagara Mohawk Power Corp., 252 AD2d 946, 946-947 [1998]; Foley v American Ind. Paper Mills Supply Co., 222 AD2d at 402; Krygier v Airweld, Inc., 176 AD2d 700, 701 [1991]; Renucci v Mercy Hosp., 124 AD2d 796, 797 [1986]).

Section 3101(d)(1)(i) requires an expert notice to give enough detail about the substance of the expert’s expected testimony.

Keita v. Zahava Services Corp. · filed 2016-05-26(d)(1)(i)

Plaintiff’s CPLR 3101 (d) notice provides enough detail regarding the substance of his expert’s expected testimony (see CPLR 3101 [d] [1] [i]).

Section 3101(d)(1) permits an expert disclosure that gives notice of the substance of the expert’s opinion without specifying the facts and opinions on which the expert will rely.

Tate-Mitros v. MTA New York City Transit · filed 2016-11-10(d)(1)

We find that Dr. Kurtz’s CPLR 3101 (d) (1) disclosure notice was legally sufficient; it provided plaintiff with notice that the doctor would question whether a bus would have caused the injuries sustained by plaintiff.

Section 3101 permits discovery from a party of documents underlying its expert’s economic loss projections when producing them is not unduly burdensome.

Grady v. AHRC NYC New Projects, Inc. · filed 2016-03-23

All that is academic since Nead is not asking the expert to disclose its raw data, but rather is asking the plaintiff to disclose the documents that the plaintiff’s economic expert based their economic loss projections on. This information is readily available to the plaintiff and can be supplied to Nead without any undue hardship. Likewise, providing W-2s, 1099s, union records, summary plan descriptions, collective bargaining agreements and authorizations to obtain union records are not unduly burdensome or inappropriate considering the late date the plaintiff served his expert disclosure.

Section 3101(d)(1)(i) requires a party to identify its experts during discovery when demanded; an unexplained failure to do so warrants rejection of their affidavits.

Abrams v. Related, L.P. · filed 2016-03-24(d)(1)(i)

Absent any excuse for noncompliance, his failure to identify his experts during discovery, as required by defendants’ demand, warrants rejection of the experts’ affidavits (see CPLR 3101 [d] [1] [i]; Garcia v City of New York, 98 AD3d 857, 858 [1st Dept 2012]).

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

Kimberlee M. v. Jaffe · filed 2016-05-17(d)

CPLR 3101 (d) “does not require a party to retain an expert at any particular time” (LaMasa v Bachman, 56 AD3d 340, 341 [1st Dept 2008]), plaintiff promptly served the expert’s affirmation within 45 days of the examination of BK (see 22 NYCRR 202.17 [c]), and the preliminary conference order only required plaintiff to serve expert disclosures at least 60 days before trial.

Section 3101(d)(1) does not require preclusion of a treating physician’s testimony when disclosed medical records give the opposing party sufficient notice to avoid surprise or prejudice.

Nieto v. Deveau · filed 2016-03-25(d)(1)

Notwithstanding, as defendant now has sufficient notice of the proposed testimony via the medical reports and records, it negates any claim of surprise or prejudice. As such, defendant’s motion to preclude is denied. Plaintiff’s CPLR 3101 (d) was served about one year ago and defendant can hardly argue prejudice.

Section 3101(d) permits preclusion of expert testimony for deficient disclosure only when the failure to disclose was intentional or willful and the opposing party was prejudiced.

WALDO, MICHELLE M. v. KANG, MINSOO · filed 2016-05-06(d)

We also agree with plaintiff that the court improperly precluded a physician from testifying at trial because of the lack of an expert disclosure. “[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” and, here, defendants failed to provide any evidence of a willful or intentional failure to disclose by plaintiff or any evidence of prejudice (Sisemore v Leffler, 125 AD3d 1374, 1375 [internal quotation marks omitted]).

Section 3101(d)(1)(i) requires expert disclosure to describe the substance of the expert’s opinions in reasonable detail, including a causation theory the expert will present at trial.

Rocco v. Ahmed · filed 2017-01-11(d)(1)(i)

Pursuant to CPLR 3101 (d) (1) (i), Ahmed and Duwuri 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.” Here, Ahmed’s expert witness disclosure only revealed expert testimony that Rocco’s stroke was not caused by his atrial fibrillation or a blood clot, but did not inform the plaintiffs that the expert would testify that the stroke was caused by calcification.

Section 3101(d)(1)(i) requires expert disclosure for a treating physician expected to give expert testimony, and a transcript of videotaped testimony cannot substitute for the required notice.

Schmitt v. Oneonta City Sch. Dist. · filed 2017-06-08(d)(1)(i)

Unlike the First, Second and Fourth Departments, this Court interprets CPLR 3101 (d) (1) (i) as "requir[ing] disclosure to any medical professional, even a treating physician or nurse, who is expected to give expert testimony" ( Norton v Nguyen , 49 AD3d at 929; compare Hamer v City of New York , 106 AD3d 504, 509 [1st Dept 2013]; Jing Xue Jiang v Dollar Rent a Car, Inc. , 91 AD3d 603, 604 [2d Dept 2012]; Andrew v Hurh , 34 AD3d 1331, 1331 [4th Dept 2006], lv denied 8 NY3d 808 [2007]). ... Contrary to plaintiffs' assertion, the transcript of Cicoria's videotaped testimony cannot serve as a substitute for the required statutory notice.

Section 3101(d)(1)(i) requires disclosure of a treating physician expected to give expert testimony; a videotaped testimony transcript cannot substitute for the required notice.

Schmitt v. Oneonta City School District · filed 2017-06-08(d)(1)(i)

Here, it is undisputed that plaintiffs did not provide an expert witness disclosure for Cicoria and, hence, they failed to comply with the provisions of CPLR 3101 (d) (1) (i) in the first instance. Contrary to plaintiffs’ assertion, the transcript of Cicoria’s videotaped testimony cannot serve as a substitute for the required statutory notice.

Section 3101(d)(1) does not entitle a defendant to the foundation for a treating radiologist’s expert opinion when the plaintiff has not designated the radiologist as an expert witness.

Siracusa v. City Ice Pavillion, LLC · filed 2017-07-20(d)(1)

Without such a designation, the defendants cannot successfully argue that they need database information, computer analysis, algorithms, and other matters for the purpose of knowing the foundation for his expert opinion pursuant to CPLR 3101 (d) (1).

CPLR 3101 requires disclosure of a witness’s name when the witness has information material and necessary to prosecuting or defending the action.

MacIsaac v. Nassau County · filed 2017-07-26

The disclosure requirements of CPLR 3101 include the obligation to disclose the names of witnesses “if they are material and necessary to the prosecution or defense of the action” (Zellman v Metropolitan Transp. Auth., 40 AD2d 248, 251 [1973]; see CPLR 3101). Here, Flower did not possess information material and necessary to the prosecution or defense of the action.

An expert report with the expert’s name redacted may be considered when the opposing party does not object to the redaction.

Torres v. Cergnul · filed 2017-01-12(d)(1)(i)

Defendants contend that the report should not have been considered, because the expert's name had been redacted from it. However, they did not object to the redaction ( see CPLR 3101[d][1][i]); therefore, the report was properly considered ( see Vega v Mount Sinai-NYU Med. Ctr. & Health Sys. , 13 AD3d 62 [1st Dept 2004]).

CPLR 3101(d)(1)(i) leaves courts discretion to consider expert evidence on a timely summary judgment motion despite a failure to disclose the expert before the note of issue, particularly when the failure was not intentional or willful and caused no prejudice.

Yampolskiy v. Baron · filed 2017-05-03(d)(1)(i)

Under the circumstances of this case, the Supreme Court properly denied ... the plaintiff’s cross motion to preclude the expert materials submitted by the defendants in support of their motion for summary judgment, as there was no evidence that the failure to disclose the experts was intentional or willful, and there was no showing of prejudice to the plaintiff (see Begley v City of New York, 111 AD3d 5, 36 [2013]; Salcedo v Weng Qu Ju, 106 AD3d 977, 978 [2013]; Hayden v Gordon, 91 AD3d 819, 820 [2012]).

Section 3101(d) requires expert disclosure, and deficiencies in that disclosure can support precluding parts of an expert’s testimony.

Guzek v. B & L Wholesale Supply, Inc. · filed 2017-06-09(d)

We reject plaintiff’s contention that Supreme Court abused its discretion in granting defendants’ motion to preclude parts of the testimony of plaintiff’s expert on the ground that plaintiff failed to comply with the disclosure requirements in CPLR 3101 (d).

Section 3101(d) permits preclusion of expert testimony on a theory of liability omitted from the expert disclosure.

Reid v. Rubinstein · filed 2017-11-14(d)

The court properly precluded plaintiff’s expert from testifying as to bone grafting since no theory of liability involving bone grafting was included in plaintiff’s expert disclosure (see CPLR 3101 [d]), or his bill of particulars.

Section 3101(d)(1)(i) requires a party expecting a treating physician to give expert testimony to disclose that intent and the substance of the expected testimony; listing the physician and providing treatment records does not suffice.

Colucci v. Stuyvesant Plaza, Inc. · filed 2018-01-11(d)(1)(i)

Thus, while Johanning was listed in Colucci's responses to defendant's bill of particulars as one of 28 treating physicians or medical providers, and medical treatment records for her were disclosed, this at most indicated to defendant that Johanning might have been called as an expert by plaintiffs; it did not obviate the need for plaintiffs to comply with CPLR 3101 (d) (1) (i) and Supreme Court's order by disclosing their intent to rely on him as an expert, as well as the substance of the facts and opinions to which he was expected to testify ( see Schmitt v Oneonta City Sch. Dist. , 151 AD3d at 1255-1256).

Section 3101(d)(1)(i) permits a court to preclude an expert disclosed during trial when the party lacks good cause for the delay and the disclosure prejudices the opposing party.

Lasher v. Albany Mem. Hosp. · filed 2018-05-10(d)(1)(i)

CPLR 3101 (d) (1) (i) requires a party to disclose his or her expert witness and certain expert information prior to trial when served with a proper demand. ... Plaintiffs' claim that they did not realize the significance of the calls, and thus the need to subpoena the phone records, until shortly before trial did not, as Supreme Court found, constitute good cause for the delay ( see Lucian v Schwartz , 55 AD3d 687, 688 [2008], lv denied 12 NY3d 703 [2009]; Amodeo v Town of Marlborough , 307 AD2d 507, 509 [2003]; Vigilant Ins. Co. v Barnes , 199 AD2d 257, 257 [1993]).

A court has discretion to deny a motion to preclude an expert physician from testifying at trial.

Castillo v. MTA Bus Co. · filed 2018-07-11(d)(1)(i)

Contrary to the defendant's further contention, the Supreme Court providently exercised its discretion in denying the defendant's motion to preclude the plaintiff's expert physician from testifying at the damages trial ( see CPLR 3101[d][1][i]; Ramsen A. v New York City Hous. Auth., 112 AD3d 439, 440).

Section 3101(d)(1)(i) requires an expert disclosure to give enough detail about the substance of the expert's expected testimony.

Alcantara-Pena v. Shanahan · filed 2019-01-22(d)(1)(i)

Plaintiff's CPLR 3101(d) notice provides enough detail regarding the substance of her economists' expected testimony ( see CPLR 3101[d][1][i]).

Section 3101(d)(1)(i) requires expert disclosure on a proper demand but sets no fixed response deadline and does not require automatic preclusion for noncompliance.

Mazzurco v. Gordon · filed 2019-06-19(d)(1)(i)

CPLR 3101(d)(1)(i) requires a party to disclose his or her expert witness and certain expert information when served with a proper demand, but does not require a response at any [*2]particular time or "mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute" ( Rowan v Cross Country Ski & Skate, Inc. , 42 AD3d 563, 564; see Rivers v Birnbaum , 102 AD3d 26, 35; Saldivar v I.J. White Corp. , 46 AD3d 660, 661).

Under CPLR 3101(d), expert testimony may be precluded for failure to disclose when the failure is intentional or willful and prejudices the opposing party.

Flowers v. Harborcenter Dev., LLC · filed 2019-02-01(d)

We reject defendants' contention that the court abused its discretion in precluding the testimony of defendants' psychiatric expert. "[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" ( Sisemore v Leffler , 125 AD3d 1374, 1375 [4th Dept 2015] [internal quotation marks omitted]). ... Thus, based on the evidence in the record supporting the court's determination that defendants had engaged in purposeful gamesmanship by withholding the information, and the resulting prejudice to plaintiff, we conclude that the court did not abuse its discretion in precluding the proposed expert testimony ( see Lasher v Albany Mem. Hosp. , 161 AD3d 1326, 1331-1332 [3d Dept 2018]; Marwin v Top Notch Constr. Corp. , 50 AD3d 977, 977-978 [2d Dept 2008]).

Section 3101(d)(1)(iii) allows a party to depose an opposing expert upon a showing of special circumstances.

Matter of Aliyah N. (Alvin N.) · filed 2019-04-18(d)(1)(iii)

The father met his burden of demonstrating special circumstances warranting the grant of his motion to subpoena and depose ACS's expert medical witness, given ACS's failure to oppose the application and its concession that it does not know whether the doctor's testimony at the fact finding hearing will support its allegations of child abuse ( see CPLR 3101[d][1][iii]; Falcone v Karagiannis , 93 AD3d 632, 634 [2d Dept 2012]).

Section 3101(d)(1) requires reasonable detail in expert witness disclosures; a deficient disclosure does not warrant preclusion when it causes no prejudice and was not intentionally withheld.

Reed v. New York State Elec. & Gas Corp. · filed 2020-05-28(d)(1)

Although we agree that said disclosure falls short of the mandates of CPLR 3101 (d) (1), and we reject plaintiff's contention that said disclosure revealed that Reiber was to testify on the impact of inflation on the value of lost services, preclusion of a witness's testimony is a drastic measure that should generally be resorted to only when it can be shown that the offending party's failure to disclose was "willful, deliberate, and contumacious" ( D.A. Bennett LLC v Cartz , 113 AD3d 945, 946 [2014] [internal quotation marks and citations omitted]). As we see no evidence of this, and can discern no prejudice to NYSEG, we find that Supreme Court abused its discretion in precluding this testimony.