Commercial Division Blog

Posted: February 7, 2022 / Written by: Jeffrey M. Eilender, Thomas A. Kissane, Samuel L. Butt, Joshua Wurtzel, Channing J. Turner / Categories Experts, Trial, Evidence

Expert May Not Opine on Party's Intent

On January 20, 2022, Justice Andrea Masley of the New York County Commercial Division issued a decision in Line Design LLC v. Pro Design, Inc., 2022 N.Y. Slip Op. 30214(U), striking portions of an expert's report that purported to opine on a party's intent but refusing to strike other portions that were challenged on the ground that the expert conducted an inadequate investigation, explaining:

An expert opinion is proper "when it would help to clarify an issue calling for professional or technical knowledge, possessed by the expert and beyond the ken of the typical juror." (De Long v Erie Cnty., 60 NY2d 296, 307, 457 N.E.2d 717, 469 N.Y.S.2d 611 [1983].) A jury "may be aided, but not displaced, in the discharge of its factfinding function." (People v Inoa, 25 NY3d 466, 472, 13 N.Y.S.3d 329, 34 N.E.3d 839 [2015].) Expert testimony that "overtakes the jury's function to decide matters within its unaided competence," however, is improper. (Inoa, 25 NY3d at 472.) [**5] Therefore, in determining whether to admit expert testimony, the court must decide whether the jurors "would be benefited by the specialized knowledge of an expert witness" or whether they would be "able to draw conclusions from the evidence based on their day-to-day experience, their common observation and their knowledge" without needing to hear [*7] from an expert. (People v Cronin, 60 NY2d 430, 433, 458 N.E.2d 351, 470 N.Y.S.2d 110 [1983].)

Plaintiff seeks to strike Greyhawk's conclusions that invoices 161, 162, 173 and 51 should be disregarded because of partial payment or a subsequent agreement to modify. To the extent Greyhawk opines on party intent, those statements will be stricken from the report and Greyhawk may not testify about intent. Defendant's defense that a partial payment was made and accepted in full satisfaction of a disputed claim requires defendant to establish a "clear manifestation of intent by the parties" to do so. (See Nationwide Registry & Sec, Ltd. v B &R Consultants, Inc., 4 AD3d 298, 299-300, 773 N.Y.S.2d 341 [1st Dep't 2004].) However, an expert may not give opinions about a party's intent because the courts recognize that the factfinder is competent to draw these conclusions itself without the help of an expert. (People v Lamont, 227 AD2d 873, 875, 643 N.Y.S.2d 243 [3d Dep't 1996] [holding that investigator's testimony about defendant's intent improperly "tended to usurp the jury's fact-finding function"].) Therefore, the words "and should be disregarded" shall be stricken from the Greyhawk report.

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Plaintiff insists that defendant's handwritten terms on the Lindenbaum proposal were a counteroffer. Greyhawk's opinion presupposes that (a) both parties intended to treat these handwritten terms as binding, and (b) Line Design's alleged violation of these terms absolves
defendant of responsibility to pay. Both conclusions are improper and thus the above section will be stricken. Whether the parties agreed to such a modification is an issue of fact and not an appropriate topic for Greyhawk's opinion.

In Section H of his report, Greyhawk evaluates the IA report. Greyhawk's failure to inspect deliverables and to value plaintiff's work goes to the weight to be given by the finder of fact to Greyhawk's report and testimony. Therefore, the court reject's plaintiff's invitation to strike section H of the report.

Expert testimony is common in commercial trials. But courts limit the scope of expert testimony to what will aid the jury in its factfinding, and will not allow an expert to opine on issues that are reserved for the jury. Contact the Commercial Division Blog Committee at if you or a client have questions concerning expert trial testimony in the Commercial Division.