Beware the Insufficiently Detailed Expert Affidavit in NY.

In Wing Wong Realty Corp. v. Flintlock Constr. Servs., LLC, the plaintiff alleged damages to its building as the result of excavation work at an adjacent construction site.  In support of its motion for summary judgment, one of the defendants (the project’s engineering consulting firm) submitted an affidavit from an expert asserting that the engineering firm had acted in accordance with good and accepted engineering practice.  The affidavit failed to indicate whether the expert had done such things as examined the excavation site, reviewed the drawings of the shoring and underpinning that were alleged to be faulty, or reviewed the designs that engineering firm had proposed changing (to prevent an incident).  In affirming the denial of the motion for summary judgment, the First Department noted that the expert affidavit (which was the basis for the motion) was not good enough to support the award of summary judgment. This decision warns parties —  do your homework and actually draft a good and detailed affidavit, or don’t bother drafting one at all.

Special thanks to Lora Gleicher for her contributions to this post.

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