On December 11, 2015, Governor Cuomo signed into law S5188-A6265. The law amends New York’s civil practice statute on summary judgment motions – CPLR 3212(b) – as to expert affidavits. The amendment states a trial judge “shall not decline” to consider an expert affidavit filed in support of, or in opposition to, a motion for summary judgment because the party offering such expert affidavit had not previously served an expert response for that expert under CPLR 3101(d)(1).
This legislation expressly overrules Construction by Singletree, Inc. v. Lowe, 55 A.D.3d 861, 863 (2d Dep’t 2008), and similar cases. Trial judges in these cases had declined to consider expert affidavits offered on a summary judgment motion because a party had not served an expert response as to that expert under CPLR 3101(d)(1) before the motion was served. SeeDeSimone v. City of New York, 121 A.D.3d 420, 421 (1st Dep’t 2014). This amendment addresses that situation. Effective immediately, it applies as to all motions for summary judgment made on or after December 11, 2015, in pending cases.
Please contact Patrick Higgins if you have any further questions.