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New York: Expert affidavit to be considered on summary judgment motions – whether or not the expert has been previously disclosed.

/ / Blog, Medical Case Review, Medical Expert Witness, Medical Malpractice, Misdiagnosis, Negligence

The Governor of New York has signed S5188/A6265 into law. This legislation overrules a line of decisions, including Construction by Singletree, Inc. v. Lowe, 55 A.D.3d 861 (2d Dep’t 2008), Garcia v. New York, 98 A.D.3d 857 (1st Dep’t 2012), Rivers v. Birnbaum, 102 A.D.3d 26 (2d Dep’t 2012) and DeSimone v. New York, 119 A.D.3d 422 (1st Dep’t 2014) which have permitted trial judges, in an exercise of discretion, to decline to consider expert affidavits submitted in support of or in opposition to, summary judgment motions where the proponent of the affidavit did not serve a CPLR 3101(d)(1)(i) exchange prior to the filing of the note of issue.

This legislation amends CPLR 3212(b) to expressly allow such an expert affidavit whether or not an expert disclosure was made prior to the submission of the affidavit.

This bill applies to all motions for summary judgment made on or after December 11, 2015.

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