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RIVERS v. BIRNBAUM

2010-11646.

102 A.D.3d 26 (2012)

953 N.Y.S.2d 232

2012 NY Slip Op 6935

JOANNE BERROUET RIVERS et al., Appellants-Respondents, v. ELIOT L. BIRNBAUM et al., Defendants, ROBIN BLISS et al., Respondents, and KIM ROSARY DECASTRO, Appellant.

Appellate Division of the Supreme Court of New York, Second Department.

Decided October 17, 2012.

Attorney(s) appearing for the Case

Mark R. Bower , P.C., New York City, for appellants-respondents.

Catalano Gallardo & Petropoulos, LLP, Jericho ( Wayne E. Spaeth of counsel), for appellant.

Rogak & Gibbons, LLP, Uniondale ( Louise H. Feffer and David B. De Siver of counsel), for Robin Bliss, respondent.

Anthony P. Vardaro, P.C., Smithtown ( Rosemary Martinson of counsel), for Alan MacDonald. respondent.

Bower Monte & Greene, P.C., New York City ( Mitchell A. Greene of counsel), for St. Catherine of Siena Medical Center, respondent.

BALKIN, J.P., and HALL, J., concur with BELEN, J.; Miller, J., concurs in a separate opinion.

OPINION OF THE COURT

BELEN, J.

This case presents us with an opportunity to clarify the rule regarding a court's consideration of an expert's affirmation or affidavit submitted on a timely motion for summary judgment where the offering party did not disclose the expert during discovery pursuant to CPLR 3101 (d) (1) (i) before the filing of a note of issue and certificate of readiness. We hold that a party's failure...

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