Supreme Court, Richmond County

Decided on March 26, 2026

Index No. *****/2023

Catherine M. DiDomenico, J.

[*1]

Recitation as required by CPLR 2219(a) of the papers considered in the review of Motion Sequence Number 011

Papers Numbered

Notice of Motion by Plaintiff (011), 1

Affirmation in Opposition by Defendant 2

Reply Affirmation by Defendant 3

Oral Argument heard on 3/26/26 4

Upon the foregoing cited papers, the Decision and Order is as follows:

The present action for divorce was commenced on December 27, 2023. After the completion of discovery, the Note of Issue was filed on January 5, 2026, and the matter was scheduled for trial. The divorce trial commenced on January 12, 2026, and was continued on January 13, 2026, January 15, 2026, and January 21, 2026. The next scheduled trial date is April 27, 2026. These trial dates were set forth in a Pre-Trial Conference Order issued on November 25, 2025. Pursuant to the terms of the Pre-Trial Order any motions in limine were to be filed "at least two days before the first day of trial."

By mid-trial Notice of Motion dated February 23, 2026 (Seq. No. 011) Plaintiff Wife moves for an Order permitting her to call Dr. Andrew Propper, Ph.D. as an expert witness to opine upon the "emotional, psychological and social impact of the domestic violence [allegedly] perpetrated by Defendant, Husband." While the motion is not stylized as a motion in limine, any motion filed to address the admissibility of evidence or expert witness testimony at trial is, in essence, a motion in limine. See Dezer Props. 4, LLC v. Broday, 29 Misc 3d 26 (App. Term. 1st Dept. 2010); see also City of New York v. Mobile Oil Corp., 12 AD3d 77 (2d Dept. 2004). While motions in limine are generally framed to preclude evidence, a motion requesting leave to call a witness is fundamentally the same, as a denial of the motion will result in the witness being precluded. See People v. Holmes, 111 AD3d 686 (2d Dept. 2013); see also Rego Park Ventures, LLC v. Shany, 195 N.Y.S.3d 428 (Civ. Ct. Qns. Cty. 2023). By the clear terms of this Court's Pre-Trial Conference Order, all motions in limine were to be filed at least two days before the commencement of trial (See Order dated 11/25/25). The trial of this action commenced on January 12, 2026, accordingly, any motion addressing the admissibility of evidence should have been filed on or before January 10, 2026. As the present motion was filed on February 23, 2026, it is untimely.

Moreover, a party who wishes to call an expert witness at trial generally has an obligation to advise the other party pursuant to CPLR §3101(d). This statute requires, in relevant part, that the party calling the witness identify (1) who they intend to call as an expert witness, (2) the subject matter of their proposed testimony, (3) the qualifications of the expert witness and (4) a summary of the grounds for their opinion. While 3101(d) does not indicate when this exchange needs to occur, it must be generally be exchanged "upon request" or within a "reasonable time before trial." See Tsatsakis v. Booth Mem Med. Ctr., 37 AD3d 591 (2d Dept. 2007). In the present case, the exchange of expert reports is controlled by the Preliminary Conference Order, which directs that they must be exchanged "60 days prior to trial or 30 days after receipt" whichever is later. Dr. Propper's report was received by the Court on or about November 4, 2024. As such if either party intended to call Dr. Propper at trial, they were required to serve a 3101(d) exchange "60 days prior to trial."

On January 5, 2026, Wife filed a "Witness List" which identifies thirteen potential witnesses but does not include Dr. Propper. Wife filed her purported 3101(d) exchange on the first day of trial, January 12, 2026, at 5:50 PM. She claims to have done so in response to Husband's opening statement, wherein his attorney denied her allegations of domestic violence. Notice of a potential expert witness exchanged on the first day of trial without a reasonable explanation is untimely. See Caccioppoli v. City of New York, 50 AD3d 1079 (2d Dept. 2008); see also Klatsky v. Lewis, 268 AD2d 410 (2d Dept. 2000). The late exchange is also prejudicial to Husband's ability to prepare for trial. As Husband argues, if he were given timely notice of Wife's intention to call Dr. Propper as a domestic violence expert, he would have been able to retain his own expert to counter his testimony, assuming he were given reasonable notice of what that testimony would be.

Dr. Propper, has only recently become "Wife's witness." By Order dated June 11, 2024 (Marrone, J.), Dr. Propper was appointed, on consent of both parties, as the Court's neutral forensic evaluator to opine upon the issues of custody and parental access. As a neutral witness, [*2]the fees associated with his forensic evaluation were split 45% to Wife and 55% to Husband. As part of his forensic analysis the Court requested that he investigate several subjects including allegations of domestic violence. However, given the nature of his appointment, his opinion on domestic violence would primarily relate to the fitness of the parties as potential custodial parents. The issues of custody and visitation were settled before trial by So Ordered "Parenting Agreement" dated August 1, 2025. This agreement indicates that both parties waived the right to seek a "judicial determination" of parental access issues and instead settled those issues "to avoid the delay, expense, and risk of litigation." Therefore, it was reasonable for Husband to conclude that Dr. Propper's involvement with the case ended on that date. Husband was only informed via an untimely 3101(d) exchange after the first day of testimony that Dr. Propper would potentially be called as Wife's witness.

A proper 3101(d) exchange must provide opposing counsel with "the subject matter of their proposed testimony, a summary of their qualifications, and a summary of the grounds for their opinion." Here, Wife's 3101(d) exchange fails to provide these summaries, and rather answers each 3101(d) requirement with the words "See Report." This Court is generally precluded from reading a forensic report before it is admitted into evidence. However, it is axiomatic that Dr. Propper's report was prepared to address parental access, and not for financial issues. While Wife's present motion explains, in detail, why she seeks to call Dr. Propper, those intentions are absent from her 3101(d) exchange. The present "financial" trial is only to litigate the issues of child support, maintenance, equitable distribution and counsel fees. While Dr. Propper may very well be qualified to opine upon the effect of domestic violence in relation to these issues, that is not why he was appointed as a court neutral, and Wife's intentions for calling him as a witness are absent from her 3101(d) exchange. It is reversible error to allow an "expert to testify on a new theory of liability where the plaintiff failed to demonstrate good cause for not disclosing the substance of their expert's new theory until the day before trial." Durant v. Shuren, 33 AD3d 843 (2d Dept. 2006); see also Lissak v. Cerabona, 10 AD3d 308 (1st Dept. 2004). Allowing Dr. Propper to pivot from a neutral witness to a party witness and to switch the focus of his testimony to a new theory mid-trial would be highly prejudicial to Husband. As just one example, Husband's testimony given during interviews with Dr. Propper would arguably be substantially different were he to understand that he was speaking to his "Wife's witness" rather than the "Court's witness."

Finally, Husband argues that Dr. Propper's forensic report, like all custodial forensic reports, is replete with hearsay statements that are not admissible during a financial trial. Moreover, it includes information gleaned from interviews with community members, extended family, and the subject children on topics that have nothing to do with the financial issues of this case. This Court finds that allowing one party to transform a neutral forensic evaluator into a retained expert witness will have a chilling effect on the willingness of litigants in matrimonial proceedings speaking to forensic evaluators honestly and with candor. This is not to say that there is never a circumstance where a retained expert can be called to testify as to the impact of domestic violence on a litigant in a matrimonial case and that impact's relation to financial issues. However, such an expert should be retained by the party who wishes to call them and timely exchanged in compliance with Court Orders and CPLR §3101(d) to provide reasonable notice to the opposing party and allow them time to challenge the expert's findings and retain [*3]their own expert.

The admissibility and scope of expert testimony is a matter of discretion entrusted to the Court. See Christoforatos v. City of New York, 90 AD3d 970 (2d Dept. 2011); see also Crawford v. Koloniaris, 199 AD2d 235 (2d Dept. 1993). Neither party has provided any controlling caselaw specific to the issues raised in Wife's motion, and this Court is aware of none. While no one factor is controlling, the Court has considered the procedural and substantive factors set forth herein, together with the arguments raised by Husband in opposition to the motion and finds that the proposed use of Dr. Propper as expert witness for Wife would be overly prejudicial to Husband. Accordingly, Wife's motion is denied in its entirety, and the testimony of Dr. Propper precluded.

Dated: March 26, 2026

Hon. Catherine M. DiDomenico

A.J.S.C.