Opinion
2013-03-21
Lenora COLLAZO, Plaintiff–Respondent, v. RIVERBAY CO–OP, et al., Defendants–Appellants.
Armienti, DeBellis, Guglielmo & Rhoden, LLP, New York (Vanessa M. Corchia of counsel), for appellants. Alexander J. Wulwick, New York, for respondent.
Armienti, DeBellis, Guglielmo & Rhoden, LLP, New York (Vanessa M. Corchia of counsel), for appellants. Alexander J. Wulwick, New York, for respondent.
Judgment, Supreme Court, Bronx County (Patricia A. Williams, J.), entered January 31, 2011, in plaintiff's favor, unanimously reversed, on the law, without costs, the judgment vacated, and the matter remanded for a new trial.
As plaintiff's son had not previously been identified as a notice witness, and defendants had no reason to anticipate that he would testify as to notice, the trial court erred in allowing him to testify that he had observed the alleged defective condition one month before his mother's accident ( see Tavarez v. DeLange, 190 A.D.2d 568, 593 N.Y.S.2d 230 [1st Dept. 1993] ). The issuance of a missing witness charge as to a purported employee of defendants whose existence was not proven was also error ( see e.g. Germe v. City of New York, 211 A.D.2d 480, 621 N.Y.S.2d 548 [1st Dept. 1995] ). These errors were compounded by the preclusion of the testimony of two defense witnesses and the limitation of a third witness's testimony.