MICHAEL C. SCHMITT et al., Respondents,
ONEONTA CITY SCHOOL DISTRICT, Appellant.
Calendar Date: March 31, 2017
Mills Law Firm, LLP, Clifton Park (Christopher K. Mills of
counsel), for appellant.
M. Hartmann, Delhi, for respondents.
Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Clark,
MEMORANDUM AND ORDER
from an order of the Supreme Court (Coccoma, J.), entered
September 19, 2016 in Otsego County, which granted
plaintiffs' motion to determine that they complied with
expert disclosure requirements.
Michael C. Schmitt and his spouse, derivatively, commenced
this action seeking to recover for personal injuries
allegedly sustained by Schmitt in December 2013 when he fell
while walking through a parking lot operated, managed and/or
controlled by defendant. Defendant answered and, in
conjunction therewith, served a demand for expert witness
disclosure. In response, plaintiffs provided defendant with
multiple expert witness disclosures - each of which pertained
to either the professional engineer or the economic expert
that plaintiffs intended to call at trial. None of the
subject disclosures made any mention of a medical expert.
2016, plaintiffs filed a notice to take the deposition of
Anthony Cicoria, Schmitt's treating physician. Upon
inquiry by defendant, counsel for plaintiffs indicated that
the purpose of the deposition was to preserve Cicoria's
testimony for trial - a representation that was reinforced at
the start of Cicoria's videotaped testimony in July 2016.
During the course of the ensuing examination, plaintiffs
attempted to offer Cicoria "as an expert in the field of
orthopedic surgery." Defendant immediately objected,
citing plaintiffs' failure to provide the required expert
disclosure (see CPLR 3101[d]  [i]).
Plaintiffs' counsel took the position that no such
disclosure was required, and the examination progressed over
defendant's continuing objection.
thereafter brought the instant motion seeking a determination
that they had "effectively complied" with the
requirements of CPLR 3101 (d) (1) (i) relative to Cicoria or,
in the alternative, that the expert witness disclosure
attached to their motion papers was sufficient for that
purpose. Defendant opposed the requested relief, citing
plaintiffs' failure to comply with discovery demands and
arguing that Cicoria's videotaped testimony was not a
proper substitute for the notice required by CPLR 3101 (d)
(1) (i) and this Court's decision in Norton v
Nguyen (49 A.D.3d 927');">49 A.D.3d 927 ). Supreme Court granted
plaintiffs' motion, finding that a fair reading of
Cicoria's testimony provided defendant with Cicoria's
qualifications, as well as the facts and opinions upon which
he could be expected to testify at trial. This appeal by
3101 (d) (1) (i) provides, in relevant part, that
"[u]pon request, each party shall identify each person
whom the party expects to call as an expert witness at trial
and shall 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, the qualifications of each expert witness and a
summary of the grounds for each expert's opinion."
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 A.D.3d at 929;
compare Hamer v City of New York, 106 A.D.3d 504,
509 [1st Dept 2013]; Jing Xue Jiang v Dollar Rent a Car,
Inc., 91 A.D.3d 603, 604 [2d Dept 2012]; Andrew v
Hurh, 34 A.D.3d 1331, 1331 [4th Dept 2006], lv
denied 8 N.Y.3d 808');">8 N.Y.3d 808 ). "Although the demand
is a continuing request, with no set time period for its
compliance, where a party hires an expert in advance of trial
and then fails to comply [with] or supplement an expert
disclosure demand, preclusion may be appropriate if there is
prejudice and a willful failure to disclose" (Mead v
Dr. Rajadhyax' Dental Group, 34 A.D.3d 1139, 1140
 [citations omitted]).
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. Simply
put, the burden of providing expert witness disclosure and
setting forth the particular details required by the statute
lies with the party seeking to utilize the expert; it is not
opposing counsel's responsibility to cull through
examination before trial testimony or, in this case, the
transcript of videotaped trial testimony to ferret out the
qualifications of the subject expert, the facts or opinions
that will form the basis for his or her testimony at trial
and/or the grounds upon which the resulting opinion will be
based. The expert disclosure annexed to plaintiffs'
motion papers, which merely incorporated by reference
Cicoria's videotaped testimony, is similarly deficient.
Accordingly, and for all of these reasons, Supreme Court
should not have granted plaintiffs' motion to determine
that they had effectively complied with the requirements of
CPLR 3101 (d) (1) (i).
concluded that plaintiffs failed to provide the required
expert disclosure, we turn our attention to the appropriate
remedy for such noncompliance. Plaintiffs' counsel
candidly conceded that he was unaware of this Court's
interpretation of CPLR 3101 (d) (1) (i) and the corresponding
need to file an expert disclosure for a treating physician,
and the record is otherwise devoid of any indication that
counsel's failure to file such disclosure was willful.
Hence, we see no need to preclude plaintiffs from calling
Cicoria to testify at trial. That said, defendant is correct
in noting that the current procedural posture of this matter
places defendant at something of a disadvantage in that
defense counsel prepared for and cross-examined Cicoria as a
fact witness and in the context of preserving such testimony
for use at trial, which is appreciably different than
deposing and cross-examining someone who has been denominated
as an expert witness prior to trial. For that reason, simply
permitting plaintiffs to file the required expert disclosure
at this point will not suffice.
need to decide whether they wish to utilize Cicoria as a fact
witness or as an expert witness (or both). If plaintiffs wish
to utilize Cicoria as a fact witness, they may either
introduce his previously videotaped testimony at trial
(see CPLR 3117 [a] ) - subject to defendant's
objections to the expert opinions expressed therein
(see CPLR 3115 [a]) and/or a protective order
relative thereto (see CPLR 3103 [a]) - or they may
call Cicoria to testify in person at trial, in which case
Cicoria's prior recorded testimony may be used solely for
impeachment purposes (see CPLR 3117 [a] ).
Plaintiffs cannot, however, as they now propose in their
brief, have it both ways, i.e., they cannot utilize
Cicoria's recorded testimony as a fact witness and then
call him live as an expert witness. Stated another way,
Cicoria may testify only once. If plaintiffs desire to
utilize Cicoria as an expert witness (or as both a fact
witness and as an expert witness), they must - within 30 days
of the date of this Court's decision - tender an expert
disclosure that satisfies all of the requirements of CPLR
3101 (d) (1) (i) and - within 60 days of the date of this
Court's decision - produce Cicoria (at their expense) for
the purpose of being deposed as an ...