This action arises, in essence, out of a dispute between landlord (plaintiff, 862 Second Avenue LLC) and tenant (defendant 2 Dag Hammarskjold Plaza Condominium). The prior procedural history in the action is complex; for present purposes, though, the material facts are that plaintiff appears likely to move for summary judgment, and that the existence and value of air rights on the premises likely will be at issue on any motion for summary judgment.

At a status conference in December 2019, defendant 2 Dag asserted that it reasonably believed that 862 Second Avenue's planned summary-judgment motion would be based in part [*2]on an expert affidavit about the issue of air rights. 2 Dag therefore took the position that it was entitled to discovery into the identity and credentials of plaintiffs' likely expert, to enable 2 Dag to oppose meaningfully plaintiff's motion. 862 Second Avenue, on the other hand, argued that under CPLR 3101 it was not required to provide 2 Dag with the expert information sought until shortly before trial; and maintained that under a 2015 amendment to CPLR 3212 (b) this court was required to consider any expert affidavit filed by 862 Second Avenue at summary judgment whether or not 862 Second Avenue had yet provided its CPLR 3101 disclosure.

This court concluded that this disagreement between the parties over the timing of expert disclosure was best resolved on papers. This court therefore entered a conference order providing that 2 Dag could move "to compel discovery as to an expert that [862 Second Avenue] intends to rely upon at summary judgment w/rt the issue of air rights," and that 862 Second Avenue could oppose the motion.^[FN1] (NYSCEF No. 267.) 2 Dag has now timely moved to compel.

At the outset, it is important to note what is—and what is not—at issue on this motion as briefed by the parties. The parties' present dispute does not concern whether 862 Second Avenue could be required to respond to a discovery demand by 2 Dag for the identity, credentials, and likely opinion of any expert that 862 Second Avenue intended to rely upon before trial, on pain of preclusion of expert evidence at summary judgment. How the 2015 amendment to CPLR 3212 (b) would affect that particular dispute strikes this court as a difficult question on which there is yet little precedent. (Cf. Washington v Trustees of the M.E. Church of Livingston Manor, 162 AD3d 1368, 1369 [3d Dept 2018] [noting without resolving a version of that question].)

This court need not resolve that question here, though. 2 Dag's motion to compel is not focused on disclosure tied only to 862 Second Avenue's use of an expert at summary judgment. Rather 2 Dag asks this court direct 862 Second Avenue "to comply with, and provide responses to, Defendant's Demand for Expert Witnesses dated May 15, 2017." (Notice of Motion, NYSCEF No. 269.) And 2 Dag's May 15, 2017, expert demand calls for disclosure, "pursuant to C.P.L.R. § 3101(d)," regarding "every expert retained or employed by you . . . whom you expect to call as a witness at trial." The demand also warns 862 Second Avenue that if it fails to comply with this demand, 2 Dag "will object to the attempted introduction of any proposed testimony or witnesses" covered by the demand "into evidence at any trial of this action." (Expert Demand, NYSCEF No. 276 [emphases added]. See also Memorandum of Law, NYSCEF No. 272 at 6-7 [characterizing 862 Second Avenue's obligation to respond to the May 15, 2017, demand as governed by CPLR 3101 [d] [1] [i].)

In other words, 2 Dag seeks discovery into 862 Second Avenue's planned use of trial experts. And as 862 Second Avenue points out (see NYSCEF No. 289 at 7-8), under CPLR 3101 (d) and Rule 11 of the court's uniform local rules, 862 Second Avenue is not required to [*3]provide its CPLR 3101 (d) trial-expert disclosure until "30 days prior to the date set by the court for trial." That date plainly has not yet passed.

2 Dag argues that this court set a different, earlier deadline for the CPLR 3101 (d) disclosure (as permitted under Rule 11) by stating in the preliminary-conference order that the "End Date for All Disclosure" would be "May 31, 2017 (including all expert discovery)" (NYSCEF No. 39 at 2). (See NYSCEF No. 290 at 2-3.) This court does not agree that this brief and equivocal statement in the preliminary-conference order necessarily modified the deadline for 862 Second Avenue's CPLR 3101 (d) disclosure.^[FN2]

Regardless, CPLR 3212 (b) is clear that the court may not decline to consider an expert affidavit at summary judgment merely because of a party's failure to provide a CPLR 3101 (d) disclosure for that expert. And, as discussed above, 2 Dag has not previously sought—and does not on this motion seek—expert discovery in a form other than the CPLR 3101 (d) disclosure itself. This court therefore concludes that 2 Dag has not established either that it is entitled now to receive a CPLR 3101 (d) expert disclosure from 862 Second Avenue, or that in the absence of such a disclosure 862 Second Avenue should be barred from relying on expert evidence at summary judgment.

Accordingly, it is

ORDERED that the branch of 2 Dag's motion seeking to compel disclosure under CPLR 3124 is denied; and it is further

ORDERED that the branch of 2 Dag's motion seeking discovery sanctions under CPLR 3126 is denied.