Anastasia Leuterio, Plaintiff, v. LENOX HILL HOSPITAL NORTHWELL HEALTH INC (2026)

The following e-filed documents, listed by NYSCEF document number (Motion 002) 66, 67, 68, 69, 70, 71, 72 were read on this motion to for PROTECTIVE ORDER.

In this action to recover damages for medical malpractice based on alleged departures from good and accepted practice and lack of informed consent, the plaintiff moves pursuant to CPLR 3103(a) for a protective order excusing her from disclosing not only the name of the expert physician that she had retained to submit an affirmation in opposition to the defendants' motion for summary judgment, which is pending under Motion Sequence 001, but also the expert's qualifications, training, board certifications, and specialties. The defendants oppose the motion. The motion is denied, and, on or before August 4, 2026, the plaintiff shall provide the defendants with her expert's qualifications, advanced healthcare degrees, training, board certifications, and specialties, and more specifically set forth below.

In opposition to the defendants' motion for summary judgment, the plaintiff submitted, among other things, an expert affirmation that redacted not only the name of her expert, but his or her qualifications, training, the nature of medical and other advanced healthcare degrees that the expert had earned, board certifications, areas of expertise, and special areas of practice. In an interim order dated June 9, 2026 that was referable to that motion, this court adjourned the return date of the motion, and directed as follows:

"On or before June 15, 2026, the plaintiff shall submit, for in camera review, an unredacted version of the affirmation of their expert witness that they had uploaded in redacted form (see CPLR 3101[d][1][i]; Mattis v Keen, Zhao, 54 AD3d 610, 611 [1st Dept 2008]) " 'to ensure that the purported expert in fact exist[s]' " (id., quoting Kruck v St. John's Episcopal Hosp., 228 AD2d 565, 566 [2d Dept 1996]).; and

"On or before June 23, 2026, the plaintiff shall move pursuant to CPLR 3103, with a return date no later than July 10, 2026, for a protective order explaining why the disclosure of the qualifications, training, board certifications, and specialties of the expert physician who submitted an affirmation in opposition to the instant motion would create a "reasonable probability that such" disclosure "would lead to the disclosure of the actual identify of her expert" and would create a "reasonable probability that such disclosure would cause such expert . . . to be subjected to unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice" (Thomas v Alleyne, 302 AD2d 36, 47 [2d Dept 2002]; see Kanaly v DeMartino, 162 AD3d 142, 153 [3d Dept 2018] [plaintiff seeking to withhold information beyond the name of an expert physician must make " 'a factual showing that there exists a reasonable probability, 'under the special circumstances of a particular case, that a prospective expert medical witness would be subjected to intimidation or threats if his or her name were revealed before trial,' " quoting Thomas v Alleyne, 302 AD2d at 45-46)."

The plaintiff has now provided the court with an unredacted copy of her expert's curriculum vitae and an unredacted copy of that expert's affirmation in opposition to the defendants' summary judgment motion. The plaintiff has also now moved for a protective order.The court may issue a protective order "denying, limiting, conditioning or regulating the use of any disclosure device" to "prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts" (CPLR 3103[a]; see County of Suffolk v Long Is. Power Auth., 100 AD3d 944, 946 [2d Dept 2012]; Accent Collections, Inc. v Cappelli Enters., Inc., 84 AD3d 1283, 1283 [2d Dept 2011]). The party seeking a protective order bears the initial burden of demonstrating that such relief is warranted (see Board of Mgrs. of Fishkill Woods Condominium v Gottlieb, 184 AD3d 792, 794 [2d Dept 2020]; Sage Realty Corp. v Proskauer Rose, LLP, 251 AD2d 35, 40 [1st Dept 1998]; see generally Liberty Petroleum Realty, LLC v Gulf Oil, L.P., 164 AD3d 401, 403 [1st Dept 2018]; Brignola v Pei-Fei Lee, M.D., P.C., 192 AD2d 1008, 1009 [3d Dept 1993]). It is perfectly appropriate for the plaintiff to redact the name of her retained medical expert from the copy uploaded to the New York State Court Electronic Filing system, while submitting an unredacted copy to the court, as she did here (see CPLR 3101[d][1][i]; 3121[b]; Gobind v Nercessian, 227 AD3d 464, 465 [1st Dept 2024]; Vega v Mount Sinai-NYU Med. Ctr. & Health Sys., 13 AD3d 62, 63 [1st Dept 2004]; Wilcox v Winter, 282 AD2d 862, 863 [2d Dept 2001]).

The plaintiff argues, however, that, although CPLR 3101(d) requires disclosure of an expert's qualifications, training, board certifications, and specialties prior to trial, the 2015 amendment to CPLR 3212(b) relieves her of the obligation to reveal those items in opposition to a summary judgment motion, inasmuch as that amendment provides 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 subparagraph (i) of paragraph (1) of subdivision (d) of section 3101 was not furnished prior to the submission of the affidavit."

She further argues that, inasmuch as she will not be obligated to provide a CPLR 3101(d) expert witness disclosure statement until a reasonable time prior to trial (see Tsatsakis v. Booth Mem. Med. Ctr., 37 AD3d 591, 593-594 [2d Dept 2007]), which, in this case, would be 60 days prior to trial, since that is the deadline expressly set forth in the preliminary conference order dated April 23, 2024, she also is not obligated to reveal her expert's qualifications, training, board certifications, and specialties prior to that time, even though she has been placed in the position of having to oppose a summary judgment motion.

The court rejects the plaintiff's interpretation of the interplay between CPLR 3101(d) and 3212(b). The purpose of the 2015 amendment to CPLR 3212(b) was to harmonize conflicting appellate decisions as to whether a party who had failed to serve a CPLR 3101(d) disclosure statement prior to his or her adversary's service of a notice of motion for summary judgment was precluded, as a matter of law, from relying on the affirmation of an expert whose information had yet to be disclosed, or whether the motion court had discretion to consider it. As the Assembly sponsor of the bill that was signed into law explained,

"This measure would amend CPLR 3212(b) to effect a very narrow, but much needed, change in procedural law concerning the admissibility of expert affidavits in civil summary judgment motions. It would, in effect, legislatively overrule a line of decisions, starting with Construction by Singletree, Inc. v Lowe, 55 AD3d 861 (2d Dep't 2008) and continuing, inter alia, with Garcia v New York, 98 AD3d 857 (1st Dep't 2012), Rivers v Birnbaum, 102 AD3d 26 (2d Dep't 2012), and, most recently, DeSimone v New York, 2014 NY Slip Op 06667 (1st Dep't 2014). These First and Second Department cases 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 when 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 measure would amend CPLR 3212(b) to expressly allow such an affidavit whether or not an expert disclosure was made prior to the submission of the affidavit."

(Assembly Sponsor's Mem, Bill Jacket, L 2015, ch 529 at 6 [emphasis added]; see Mem in Support of Chief Admin. Judge, Bill Jacket, L 2015, ch 529 at 11-14). The sponsor additionally noted that both the Appellate Division, First Department, and the Appellate Division, Second Department, had also issued contrary decisions, in which those Courts actually recognized a motion court's discretion to consider, rather than reject, such affidavits (see Assembly Sponsor's Mem, Bill Jacket, L 2015, ch 529 at 6, citing, among other cases, Ramsen A. v New York City Hous. Auth, 112 AD3d 439 [1st Dept 2013] and Buchanan v Mack Trucks, Inc., 113 AD3d 716 [2d Dept 2014]). At least one more recent trial court-level decision concluded that, even after the effective date of the amendment to CPLR 3212(b), a motion court retains the discretion to either consider or decline to consider an expert's affirmation or affidavit, depending on the specific facts of the case (see Theroux v Resnicow, 72 Misc 3d 654 [Sup Ct, NY County 2021] [declining to consider expert's affirmation where proponent of affirmation was under a previously court-ordered obligation to serve a CPLR 3101(d)(1) expert disclosure statement by a date certain, but the proponent failed to do so, and nonetheless relied upon that expert's affirmation in opposition to a summary judgment motion]).

As the Assembly sponsor of L. 2015, ch. 529, further explained it,

"[c]ompounding the difficulties practitioners face in navigating the conflicting holdings cited above are the multitude of different Judicial District, County, and individual judges' rules addressing the timing of expert disclosure, many of which may be at odds with CPLR 3101(d)(1)(i) or which do not require disclosures of expert information before the filing of a notice. Another factor complicating the timing of expert disclosure is the continuing practice in certain counties to permit routine post-note of issue disclosure.

"Accordingly, this measure would not alter the circumstances in which expert testimony may be offered. Nor would it alter the rules concerning the admissibility of the reports or data on which the testimony may be premised. It would simply provide that a party's right to submit an expert affidavit in support of or in opposition to a summary judgment motion would not be affected by whether or not the part made disclosure of the expert before submitting the affidavit [. It] is designed to aid in establishing uniformity in practice state-wide, reducing confusion among members of the bench and bar as to the timing of expert disclosure, and making certain that where expert testimony is required or desired in support or opposition of a summary [sic] motion, the functional equivalent of a trial, that parties have the same latitude to utilize expert testimony as they do at trial"

(Assembly Sponsor's Mem, Bill Jacket, L 2015, ch 529 at 8 [emphasis added]).

As the legislative history of the 2015 amendment to CPLR 3212(b) thus demonstrates, the amendment was not meant to alter the existing rules as to what information a plaintiff's expert must reveal when submitting an affirmation or affidavit in opposition to a defendant's summary judgment motion in a medical malpractice action. The amendment also was not meant to alter the circumstances in which expert testimony may be offered or the rules concerning the admissibility of reports or data on which such testimony may be premised, which necessarily include the rules concerning what information may be withheld by an expert to avoid embarrassment or adverse consequences to the expert's professional reputation. Rather, it was a "narrow" amendment that addressed the discrepancy between the generally liberal timing requirements of expert disclosures in connection with trials, and the frequently more constricted timing when a plaintiff attempted to employ an expert affirmation to oppose a summary judgment motion, which necessarily would occur long before a trial date would be scheduled.

Hence, the court concludes that the plaintiff was required to make a showing of a reasonable probability that the disclosure of her expert's qualifications, training, board certifications, and specialties would cause his or her expert to be subjected to unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice before that information may be withheld. That rule applies equally to CPLR 3101(d) expert disclosure statements and affirmations submitted in opposition to summary judgment motions. The court also concludes that the plaintiff failed to make the necessary showing. Hence, although the plaintiff may withhold the name of her expert at this juncture, she is not entitled to withhold information concerning her expert's qualifications, training, board certifications, and specialties. In this respect, the court notes that, without that information, the defendants cannot know whether the expert is indeed qualified to render the opinions that he or she articulated in the relevant affirmation, or how that expert is applying his or her qualifications, expertise, and experience in reaching those conclusions.

Accordingly, it is,

ORDERED that the plaintiff's motion for a protective order is denied; and it is further,

ORDERED that, on the court's own motion, the plaintiff shall, on or before August 4, 2026, provide the defendants with her expert's qualifications, the types of advanced or graduate healthcare degrees that the expert has earned, excluding the names of the institutions where that expert obtained those degrees, the date or dates that the expert earned those degrees, the expert's training, the expert's board certifications, if any, and the expert's specialties.

This constitutes the Decision and Order of the court.

DATE 7/28/2026

JOHN J. KELLEY, J.S.C.

John J. Kelley, J.