Using N.Y. C.P.L.R. § 3101 (h) For The Defense

Using N.Y. C.P.L.R. § 3101 (h) For The Defense: CPLR § 3101(h), effective January 1, 1994, was modeled after rule 26(e) of the Federal Rules of Civil Procedure which explicitly requires that a party, under certain circumstances, promptly supplement or amend responses to disclosure requests.

N.Y. C.P.L.R. § 3101 (h), states:
Amendment or supplementation of responses. A party shall amend or supplement a response previously given to a request for disclosure promptly upon the party’s thereafter obtaining information that the response was incorrect or incomplete when made, or that the response, though correct and complete when made, no longer is correct and complete, and the circumstances are such that a failure to amend or supplement the response would be materially misleading. Where a party obtains such information an insufficient period of time before the commencement of trial appropriately to amend or supplement the response, the party shall not thereupon be precluded from introducing evidence at the trial solely on grounds of non-compliance with this subdivision. In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just. Further amendment or supplementation may be obtained by court order. CPLR § 3101(h) requires that a party amend/supplement its response to a request for disclosure promptly upon obtaining information that the response was incorrect or incomplete when made, or that the response, though correct and complete when made, is no longer correct and complete, and that the circumstances are such that a failure to amend or supplement the response would be materially misleading.

How can defense counsel use this statute to their advantage?

Although CPLR § 3101(h) does not specifically provide for motion practice, where one party knows that the opposing side has information but has not supplied it, the party seeking the information may move the court to force an amendment or supplementary response. Green v. S.I. Univ. Hospital., 161 Misc.2d 976, 615 N.Y.S.2d 856, affd. 221 A.D.2d 416, 634 N.Y.S.2d 386 (2nd Dept.1995). Accordingly, defendant need not serve a new demand. Dehaney v. New York City Transit Auth., 180 Misc. 2d 695, 699, 694 N.Y.S.2d 831, 834 (Civ. Ct. 1997).

Consider the plaintiff who serves post Note of Issue supplemental claims of additional injuries, continuing treatment and further economic loss allegations, based on medical records and reports, which pre-dated the Note of Issue filing. An appropriate motion under CPLR § 3101(h) can level the playing field. Consider the fate of the defendants in the annexed Appellate Division decision, Arpino v. F.J.F. & Sons Elec. Co., 102 A.D.3d 201, 959 N.Y.S.2d 74 (2012).