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Theroux v. RESNICOW, 2021 NY Slip Op 21146 - NY: Supreme Court May 27, 2021

"Pryor Cashman LLP, New York, NY (Bryan T. Mohler of counsel), for plaintiff.

Peter M. Levine, Esq., New York, NY, for defendants Norman J. Resnicow and Barbara Resnicow.

GERALD LEBOVITS, J.

Plaintiff Justin Theroux and defendants Norman and Barbara Resnicow are neighbors in a Manhattan co-op apartment building. This action arises from the years-long quarrel between them. Theroux has alleged that the Resnicows' course of conduct during that quarrel constituted a private nuisance that harmed the value of Theroux's apartment; and he has also alleged that conduct by Norman Resnicow impaired and delayed renovation projects occurring on the premises of Theroux's apartment, forcing Theroux to incur added renovation costs.

As part of discovery in the action, the Resnicows have on multiple occasions asked Theroux to specify further the nature and extent of each element of his claimed damages. Theroux thus far has refused. Theroux's position has been, in essence, that providing the requested specificity likely would entail obtaining the opinion of an expert, and that it would be premature to require Theroux to obtain and disclose an expert's opinion about his damages in the middle of paper discovery. This court previously accepted this argument at multiple status conferences based on the status of discovery at that time. (See e.g. NYSCEF No. 311 at 2-3 [September 2020 status conference order].)

At the most recent discovery conference in this action, held on May 17, 2021, this issue relating to Theroux's claimed damages recurred. This court concluded at the conference that given the progress made in discovery, it would now be appropriate to set a deadline for Theroux to provide an expert disclosure identifying in more detail the different components (and extent) of Theroux's damages; and that the disclosure should be provided by the time Theroux files his note of issue.^[1]

That aspect of the expert-discovery issue is comparatively straightforward. The difficulty lies instead in the question whether this court may, under CPLR 3126, impose consequences at the summary-judgment stage for any failure by Theroux to meet that expert-report deadline. At this court's request, the parties submitted letter briefing on this issue. (See NYSCEF Nos. 382-386.) This court concludes that a court retains discretion to impose discovery sanctions at summary judgment for failure to comply with court-ordered deadlines for expert discovery. Under the circumstances of this action—particularly the extent to which itemization and specification of Theroux's damages has now been a contested issue in discovery for well over a year—this court further concludes that if Theroux has not provided an expert disclosure regarding damages by the time he files his note of issue, he may not rely on a damages expert at summary judgment.

DISCUSSION

I. Whether This Court May Impose Discovery Sanctions at Summary Judgment for Failure to Provide a Court-Ordered Expert Disclosure

Whether this court may preclude Theroux from offering an expert affidavit at summary judgment depends on the interplay among three CPLR provisions. CPLR 3101(d)(1)(i), governing expert disclosures, does not itself set a deadline for when those disclosures must be made. But this court has authority to issue orders setting expert-discovery deadlines beyond those imposed by the CPLR; and under CPLR 3126, this court has discretion to impose a range of sanctions for failure "to obey an order for disclosure." CPLR 3212 provides, though, that "[w]here an expert affidavit is submitted in support of, or opposition to, a motion for summary judgment, the court shall not decline to consider the affidavit because an expert exchange pursuant to [CPLR 3101(d)(1)(i)] was not furnished prior to the submission of the affidavit." (CPLR 3212[b] [emphasis added].)

The question, then, is whether this clause of CPLR 3212(b) eliminates this court's discretion under CPLR 3126 to preclude a party from submitting expert evidence at summary judgment due to the party's failure to comply with a court-ordered deadline for expert discovery. This court concludes that the language of CPLR 3212(b) does not oust that discretion.

A. The Text of the 2015 Amendment to CPLR 3212(b)

The Legislature amended CPLR 3212(b) to add the clause at issue only in 2015. As a result, there is a dearth of authority on the question. The parties have not provided, and this court's research has not uncovered, any appellate decision directly addressing the scope of this clause.^[2]

At most, a 2018 decision of the Appellate Division, Third Department, held that a trial court providently exercised its discretion in declining to consider expert affidavits offered by a party at summary judgment, in a case where the party had not filed its CPLR 3101(d)(1)(i) expert disclosures until more than a year after the deadline set by the trial court. (See Colucci v Stuyvesant Plaza, Inc., 157 AD3d 1095, 1098-1099 [3d Dept 2018].^[3]) On the one hand, Colucci would seem to rest on an implicit conclusion by the Third Department that the trial court still had discretion to refuse to consider expert affidavits as a sanction for missing a court-ordered disclosure deadline. (See Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3101:29A, Paragraph 1, Subparagraph (i), Subdivision I [noting this point].) On the other hand, this (potential) basis for the Colucci Court's holding was entirely implicit: the Third Department's decision did not discuss the 2015 amendment to CPLR 3212(b) or the limits that the amendment places (or does not place) on trial-court discretion at summary judgment. This court is skeptical in these circumstances that Colucci should be regarded as necessarily settling the matter, and therefore considers CPLR 3212(b)'s scope afresh for itself.

This court concludes as an initial matter that the relevant clause of CPLR 3212(b) is ambiguous. One could potentially read this language broadly, as providing that a party's failure to provide an expert disclosure in advance of its summary judgment papers is never an acceptable ground for a trial court to decline to consider the expert affidavit at summary judgment—including in scenarios where a court rule or court order had expressly required the party to provide that disclosure in advance. (See Framan Mechanical, 2019 NY Slip Op 50583[U], at *4-*5 [advancing a version of this interpretation].^[4])

A narrower reading, though, also is feasible, under which CPLR 3212(b) bars only certain reasons for a court's refusal to consider expert evidence. That is, the relevant language states that a court shall not refuse to consider the evidence "because an expert exchange" under CPLR 3101(d) "was not furnished prior to the submission of the affidavit." (CPLR 3212[b] [emphasis added].) On this interpretation, a party's delay alone (and thus the party's resultant failure to give advance notice of its intent to rely on an expert at summary judgment) is not a proper basis for the court to refuse to consider the party's expert evidence. By the same token, CPLR 3212(b) would leave intact the court's discretion to exclude that evidence for some other reason—such as the party's failure to comply with court-ordered deadlines.

B. The History of the 2015 Amendment to CPLR 3212(b)

The legislative history of the 2015 amendment to CPLR 3212(b) provides important insight on how to resolve this ambiguity.

The impetus for the amendment was a series of decisions of the First and Second Departments of the Appellate Division, holding that trial courts had discretion to—or perhaps were required to—disregard expert affidavits at summary judgment if the proponents of those affidavits had not served expert disclosures prior to the filing of the note of issue.^[5] In 2015, the Chief Administrative Judge's Civil Practice Advisory Committee concluded in its annual report that these decisions were questionable on multiple grounds and should be legislatively overruled.^[6]

The Advisory Committee report noted that courts had long tied expert disclosures under CPLR 3101(d)(1)(i) to "the date set for trial of an action or proceeding," not to the completion of pretrial discovery (as marked by the filing of the note of issue and certificate of readiness). (Advisory Committee Report at 27.) The Committee criticized the Appellate Division decisions at issue for "impos[ing] a temporal requirement for noticing expert witnesses" that does not appear in the CPLR, thereby, "in effect, preclud[ing] otherwise admissible expert testimony." (Id.) And the Committee expressed concern about the potential for confusion of practitioners forced not only to navigate potentially conflicting holdings on exclusion of expert testimony, but also the "multitude of different Judicial District, County, and individual judges' rules addressing the timing of expert disclosure." (Id.)

The Advisory Committee therefore recommended that CPLR 3212(b) should be amended to provide "that a party's right to submit an expert affidavit" at summary judgment "would not be affected by whether or not the party made disclosure of the expert before submitting the affidavit." (Id. at 28.) The Advisory Committee's proposed amendment was then introduced in the Legislature at the request of the Chief Administrative Judge, and enacted as introduced. (See Bill Jacket, L 2015, ch 529, at 6.^[7])

C. Considering the 2015 Amendment's Scope in Light of its Text and History

The Advisory Committee's report is thus entitled to great weight in considering the mischiefs at which the 2015 amendment was aimed, and thus the appropriate scope of the amendment's ambiguous language.

The report reflects that the Committee's concern lay chiefly with timing—with appellate decisions that limited a party's ability to rely on an expert at summary judgment merely because the expert had not been disclosed during pretrial discovery. The Committee had little to say, on the other hand, about whether it would be appropriate (or inappropriate) for a court instead to preclude a party from introducing expert evidence at summary judgment because the party had flouted a specific court-ordered disclosure deadline.^[8] There is thus little reason to interpret the 2015 amendment (prompted by the Committee's recommendation) as removing a court's discretion to disregard an expert affidavit in the latter scenario.^[9]

Permitting exclusion of an expert affidavit for noncompliance with a court order also would be consistent with the Committee's other stated concerns and objectives, as well.

Courts have power to set deadlines for pretrial discovery and to impose consequences when those deadlines are not met. Excluding an expert affidavit for missing a court-ordered deadline for expert disclosure would not engraft an atextual temporal limitation into CPLR 3101(d)(1)(i) any more than would, for example, precluding documentary evidence under CPLR 3126 for failure to comply with court-ordered deadlines for producing documents under CPLR 3120.

Additionally, entry of a court order (such as a conference order) that sets specific pretrial deadlines for service of CPLR 3101(d) disclosures generally occurs only when the parties have already agreed that the circumstances of the particular case warrant providing fuller expert discovery well in advance of the note of issue filing and summary-judgment briefing—or where the parties have disagreed on that point and the court concludes that expert disclosures are needed at that stage of the litigation. This more case-specific treatment addresses the Advisory Committee's concern that CPLR 3101(d) disclosures are a trial matter that should not be categorically required to be dealt with in pretrial discovery. (See Advisory Committee Report at 27.)

Further, a court order setting expert-disclosure deadlines also will put a party on notice not only of what it must do, but that failure to comply risks consequences such as preclusion of evidence. And court orders imposing stern sanctions such as preclusion usually are the culmination of repeated discovery disagreements between the parties leading to judicial intervention(s). Preclusion orders issued during pretrial discovery are generally not bolts from the blue.

Relatedly, reading broadly the relevant clause of CPLR 3212(b) would foreclose a trial court from taking steps to enforce its own discovery orders—if, and only if, those orders set deadlines for service of expert disclosures. Indeed, that would be true even in a scenario in which the court's deadline-setting order was resolving a meritorious motion on notice to compel discovery. The text of the 2015 amendment to CPLR 3212(b) does not require this anomalous result. Nor does anything in the amendment's history even suggest that the Legislature (or the Advisory Committee) had this result in mind.

II. Whether This Court Should Impose Discovery Sanctions at Summary Judgment for Failure to Provide a Court-Ordered Expert Disclosure

As noted at the outset, this court concludes that Theroux must, by the time he files his note of issue, provide a CPLR 3101(d)(1)(i) disclosure for any damages expert that he intends to retain and rely upon at summary judgment. And, for the reasons given above, this court further concludes that it has discretion to refuse to consider an expert affidavit explaining and supporting Theroux's claimed damages, should Theroux not comply with this disclosure deadline. The question remains, though, whether imposing that discovery sanction would be an appropriate exercise of this court's discretion. The court concludes that it would.

The issue on which the Resnicows are seeking further disclosure from Theroux (on which Theroux has represented he will be relying on an expert's opinion) goes to the core of Theroux's case, namely what his claimed damages are—how much money he believes necessary to redress his injuries, in which categories, for which reasons. Given the significance of this information to the action, the Resnicows have long been persistent (indeed, vehement) in seeking this information from Theroux, and in seeking judicial intervention to compel Theroux to produce the information when he refused the Resnicows' requests. And this court's directive to Theroux affords him meaningful time (at present, nearly five months) to consider whether to retain an expert or experts and, should Theroux do so, to provide CPLR 3101(d)(1)(i) disclosures.

Given the importance of the requested expert disclosures to this case, and the amount of time that Theroux has to provide the disclosures, this court concludes that should Theroux fail without good cause to provide the disclosures by his deadline to file the note of issue, he will be precluded from relying at summary judgment on expert affidavits relating to damages. Any such preclusion would not extend, however, to use of expert evidence at a trial of this action, should trial ultimately be required. The issue of admissibility of expert testimony at trial would instead be considered anew at that point under CPLR 3101(d)(1).

[1] Given the status of discovery and the parties' schedule for taking the remaining depositions, as discussed in the recent conference the note-of-issue deadline will be extended through October 15, 2021.

[2] Indeed, this court is aware only of a single trial-court decision directly discussing the issue. (See Framan Mech., Inc. v Dormitory Auth. of the State of NY, 2019 NY Slip Op 50583[U] [Sup Ct, Albany County Mar. 7, 2019].)

[3] Cf. Washington v. Trustees of the M.E. Church of Livingston Manor (162 AD3d 1368, 1369 [3d Dept 2018] [affirming trial court's decision to consider plaintiff's expert affidavit at summary judgment, without reaching defendant's argument that the expert affidavit should have been excluded due to plaintiff's asserted noncompliance with trial-court discovery orders]; Barr v Liddle & Robertson, L.L.P. (2018 NY Slip Op 33113[U], at *2 [Sup Ct, NY County Dec. 5, 2018] [rejecting defendant's argument that plaintiff should be precluded from using an expert report at summary judgment for failure to meet expert-disclosure deadline, and deciding as an act of discretion to consider the expert report]).

[4] The decision in Framan Mechnical held that the Commercial Division rule in the case, which imposed preclusion for failure to comply with the rule's deadlines for expert disclosure, had to be "read in harmony with the statutory law enacted by the State Legislature," namely CPLR 3212(b). (2019 NY Slip Op 50583[U], at *5.) The decision did not consider in depth the proper scope of the relevant clause of CPLR 3212(b). Nor did it have occasion to address the issue here: whether the same result obtains should a court preclude expert evidence at summary judgment for failure to comply deadlines set out in a discovery order.

[5] See e.g. DeSimone v City of NY (121 AD3d 420, 421 [1st Dept 2014] [affirming trial court's discretionary decision to refuse to consider expert evidence because disclosure was not submitted until after filing of the note of issue]); Rivers v Birnbaum (102 AD3d 26, 39-43 [2d Dept 2012] [holding trial court had discretion to consider or disregard expert evidence where disclosure is filed after the note of issue, and properly exercised discretion to consider evidence]); Garcia v City of NY (98 AD3d 857, 858 [1st Dept 2012] [holding that trial court abused its discretion in considering expert affidavit where expert disclosure was not filed prior to note of issue despite longstanding demand for disclosure]); Construction by Singletree, Inc. v Lowe (55 AD3d 861, 863 [2d Dept 2008] [holding that trial court properly exercised its discretion to refuse to consider expert affidavit where expert disclosures and evidence were not served until after filing of the note of issue]).

[6] See Report of the Advisory Committee on Civil Practice to the Chief Administrative Judge of the Courts of the State of New York 25-28 (2015) (Advisory Committee Report), available at https://www.nycourts.gov/LegacyPDFS/IP/judiciaryslegislative/pdfs/2015-CivilPractice-ADV-Report.pdf (last accessed May 26, 2021).

[7] This bill jacket may be found on the Bill Jackets page of the New York State Archives website, https://digitalcollections.archives.nysed.gov/index.php/Detail/collections/7782 (last accessed May 24, 2021). The analysis of the amendment in the bill jacket by its proponents is largely drawn verbatim from the Advisory Committee's analysis. (See Bill Jacket at 6-8, 12-14.)

[8] In Rivers v Birnbaum, the Second Department specifically emphasized a trial court's authority to "impose a specific deadline . . . for the disclosure of experts to be used in support of a motion for summary judgment," and noted that its holding in the case was not intended to call into question the court's "discretion, pursuant to CPLR 3126, to impose appropriate sanctions if a party fails to comply with the deadline.' (102 AD3d at 41-42.) The Advisory Committee report, though discussing other aspects of Rivers, did not mention this passage of the decision. Although perhaps not compelling, standing alone, the absence of discussion of the issue in the report is at least a small point in favor of this court's conclusion here.

[9] This court need not, and does not, address the distinct question of whether a court may properly preclude a party from relying on an expert affidavit at summary judgment as a sanction for failing to comply with a local court rule setting a general deadline for expert disclosures, such as the Commercial Division rule at issue in Framan Mechanical. (See 2019 NY Slip Op 505"