(dissenting in part). In granting that branch of the motion of the defendant J.C. Construction Management Corp. (hereinafter J.C.) which was for summary judgment dismissing so much of the appellant’s second cross claim as was to recover compensatory damages for breach of warranty, the Supreme Court did not consider the affidavits from the appellant’s experts on the grounds that the appellant failed to identify such experts during pretrial disclosure and the affidavits were not served until after the filing of the note of issue.
The preliminary conference stipulation and order which governed both pretrial disclosure and the filing of the note of is*865sue provided that “expert disclosure shall be provided by all parties pursuant to CPLR 3101.”
The provision of the CPLR which was referenced in the trial court’s preliminary conference order and stipulation is entitled “Trial Preparation,” and provides in pertinent part as follows: “Upon request, each party shall identify each person whom the party expects to call as an expert witness at trial and shall disclose in reasonable detail the subject matter which each expert is expected to testify.” (CPLR 3101 [d] [1] [i] [emphasis added].)
Therefore, the trial court’s order, read in conjunction with CPLR 3101 (d) (1) (i), only required the disclosure of experts retained for the purpose of providing testimony at the time of trial. Here, the appellant submitted affidavits from experts for the purpose of raising a material issue of fact in opposition to the motion of the defendant J.C. for summary judgment dismissing his cross claims. CPLR 3101 (d) (1) (i) simply does not require the disclosure of experts or consultants that are retained and utilized by a party for purposes other than providing trial testimony.
Accordingly, I respectfully disagree with my colleagues to the extent that the majority holds that CPLR 3101 (d) (1) (i) requires the disclosure of consultants or experts retained for the purpose of opposing a summary judgment motion. There is no requirement that an expert or consultant who provides an affidavit for the limited purpose of opposing a summary judgment motion be the same expert trial witness who testifies at the subsequent trial. Even if CPLR 3101 (d) (1) (i) applied to these affidavits, it is well settled that this provision does not require a party to respond to a demand for expert witness information at any specific time in any event (see Cutsogeorge v Hertz Corp., 264 AD2d 752, 753 [1999]). Were we concerned with expert trial witnesses on the eve of trial, which we are not, we would undertake the consideration of whether the alleged noncompliance with the statute was intentional or willful (see Cutsogeorge v Hertz Corp., 264 AD2d at 753). However, such consideration is not necessary under the procedural posture of this case.
In my view, the applicability of CPLR 3101 (d) (1) (i) to the employment of experts opposing a summary judgment motion is contrary to the express language of the statute and beyond its clear legislative intent.
Therefore, I would delete the provision of the order granting that branch of J.C.’s motion which was for summary judgment dismissing so much of the appellant’s second cross claim as was to recover compensatory damages for breach of warranty and *866remit the matter to the Supreme Court for a new determination on that branch of the motion, based upon the complete record, inclusive of the appellant’s expert affidavits.