New Law Allows Expert Affidavits on Summary Judgment, Whether or Not Previously Disclosed

29-Dec-2015

On December 11, 2015, the Governor signed into law S5188/A6265, amending CPLR 3212(b) to allow an expert affidavit to be submitted in connection with a motion for summary judgment, whether or not the proponent of the affidavit had disclosed it previously.

The new law expressly overrides a body of case law that had permitted trial judges to exercise their discretion in declining to consider expert affidavits, submitted in support of or in opposition to summary-judgment motions, where the proponents of the affidavits had not served CPLR 3101(d)(1)(i) exchanges prior to the filing of a note of issue.  See DeSimone v. New York, 119 A.D.3d 422 (1st Dep’t 2014); Garcia v. New York, 98 A.D.3d 857 (1st Dep’t 2012); Rivers v. Brinbaum, 102 A.D.3d 26 (2d Dep’t 2012); Construction by Singletree, Inc. v. Lowe, 55 A.D.3d 861 (2d Dep’t 2008).

The new law applies to all motions for summary judgment made on or after December 11, 2015.

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