On March 14, 2023, the First Department issued a decision in Pope Invs. II LLC v. Belmont Partners, LLC, 2023 NY Slip Op. 01264, affirming the exclusion of expert testimony for failure to provide expert disclosures required by the Commercial Division Rules, explaining:
Nor did the motion court, in dismissing the breach of fiduciary duty claim, improvidently exercise its discretion in precluding the testimony of plaintiffs’ expert, Jim McMullen, based on plaintiffs’ failure to comply with Commercial Division Rule 13[c]. Plaintiffs contend that Commercial Division Rule 13(c) does not apply to McMullen because, as a former employee of plaintiff Jayhawk, he was not a “retained” expert witness. However, plaintiffs do not accurately describe the type of testimony that McMullen provided. While they categorize him as a “non-retained expert witness” who would offer opinion testimony based on his personal knowledge, they also refer to him as a “hybrid witness” falling somewhere in between a fact and an expert witness whose testimony is not regulated by the Commercial Division rules. McMullen has admitted that he was not personally involved in the reverse merger, and thus the scope of his testimony as a fact witness will be limited. Furthermore, to the extent he can be considered an “expert,” plaintiffs have not established that he was not “retained,” particularly given that he is no longer employed by Jayhawk. Regardless, consideration of McMullen’s testimony would not save the fatal deficiencies with plaintiff’s fiduciary duty claims.(Internal citations omitted).