Governor Cuomo recently signed into law A6265/S5188, which amends N.Y. C.P.L.R. 3212 – the statute that governs summary judgment – with respect to the use of expert affidavits.
The statute now reads, with new text bolded:
(b) Supporting proof; grounds; relief to either party. A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts; it shall recite all the material facts; and it shall show that there is no defense to the cause of action or that the cause of action or defense has no merit. Where 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. The motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. Except as provided in subdivision (c) of this rule the motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact. If it shall appear that any party other than the moving party is entitled to a summary judgment, the court may grant such judgment without the necessity of a cross-motion. (Emphasis added.)
The amendment overrules a line of Appellate Division decisions which 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.