On motion sequence 059 in this long-running insurance coverage action, this court granted the motion of defendant Brooklyn Union Gas Company to disqualify two designated expert witnesses of plaintiff, Century Indemnity Company. (See Century Indem. Co. v Brooklyn Union Gas Co., 2024 NY Slip Op 31359[U] [Sup Ct, NY County 2024].)

Century has appealed this court's disqualification order to the Appellate Division, First Department, and has perfected its appeal for the First Department's February 2025 term. Century now moves under CPLR 2201 for a stay of expert-discovery deadlines pending that appeal. The [*2]motion is denied.

Whether to grant a motion for a CPLR 2201 stay pending appeal (whether taken in the action before the court or in a related action) is within the motion-court's discretion. (See CDR Créances S.A. v Euro-American Lodging Corp., 40 AD3d 421, 423 [1st Dept 2007] [affirming denial of stay].) In considering a party's request for a discretionary stay pending appeal, the most important factor is whether the appeal has merit. (See id.; accord 64 B Venture v American Realty Co., 179 AD2d 374, 375-376 [1st Dept 1992] [affirming denial of request for discretionary stay sought under CPLR 5519 [c]].) Here, Century has "failed to show sufficient merit to [its] appeal" to warrant a stay. (64 B Venture, 179 AD2d at 376].)

In considering Brooklyn Union's motion to disqualify, this court employed the First Department's two-prong disqualification inquiry, under which disqualification is required when "(i) 'it was objectively reasonable for a party claiming to have initially retained the expert to conclude that a confidential relationship existed between them'; and (ii) 'confidential or privileged information was disclosed by the party to the expert.'" (Century Indem., 2024 NY Slip Op 31359[U], at *3, quoting Manna Amsterdam LLC v West 73rd Tenants Corp., 226 AD3d 456, 457 [1st Dept 2024].) This court rejected Century's argument that the inquiry should also take into account "whether any prejudice might occur if an expert is or is not disqualified." (Id. at *3 n 4 [internal quotation marks omitted].) This court noted, in doing so, that New York precedents—unlike the federal trial-court decisions relied on by Century—folded the prejudice issue into the existing two-prong test, rather than treating it as a separate precondition to disqualification. (See id. at *3 n 4, *6 & n 9, *7.)

Century's opening memorandum of law does not contend that New York caselaw currently considers prejudice to be a separate disqualification condition. Instead, Century argues that there is a "serious question" about "whether the prejudice requirement should be adopted by New York courts," and that "good reasons" exist "for the First Department to adopt the prejudice requirement." (NYSCEF No. 1453 at 10.) That is, Century's challenge to this court's disqualification ruling is not that this court misapplied current New York law, but rather that the First Department should change the law to be applied. Century does not, however, identify any statements in decisions of the First Department (or any other New York court) that might foreshadow the particular change being sought. Century says only that the First Department previously relied on federal cases in "crafting the New York standard" for expert disqualification, and that the Court should do so again to modify that standard. (NYSCEF No. 1453 at 10.) In these circumstances, Century has not shown that its appeal has merit for purposes of the current stay motion.

On reply, Century asserts that its position is instead "that the existing New York standard is the same as the federal standard," and thus also incorporates a freestanding prejudice requirement. (NYSCEF No. 1466 at 7 [emphasis in original].) But on the immediately preceding page of its reply, Century also says that while New York courts "have not yet had occasion to decide whether this aspect of the federal [disqualification] standard should . . . be incorporated into New York law, there is every reason to believe it will be" (id. at 6)—in other words, that the existing New York disqualification standard will change. These two statements cannot be reconciled.

Nor, in any event, has Century shown that New York law as it now stands incorporates a [*3]separate prejudice criterion. Century's stated basis for this position is that "New York expert-disqualification law tracks federal law"; and therefore that because some federal trial-court decisions have imposed a prejudice requirement, New York's caselaw in this area should be understood as having done the same. (Id. at 7 [emphasis omitted].) But as this court noted in its prior order (see Century Indem., 2024 NY Slip Op 51359[U], at *6 n 9), Century's position does not follow. It is undisputed that Appellate Division precedents on expert disqualification have drawn expressly on particular federal decisions in this area. But that does not mean that New York courts will also adopt the holdings of other federal decisions, such as the ones on which Century is now relying—much less that New York courts have already silently done so.

In short, this court is not persuaded that Century's arguments for why the law should change establish that its appeal has sufficient merit to warrant this court's granting a CPLR 2201 stay pending appeal.^[FN1]

Accordingly, it is

ORDERED that Century's motion for a stay of the current expert-disclosure deadlines, pending a ruling on Century's appeal from this court's order entered October 2, 2024, on mot seq 059, is denied.