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Jefferson v. Temco Services Industries

Appellate Division of the Supreme Court of New York, First Department
May 18, 2000
272 A.D.2d 196 (N.Y. App. Div. 2000)

Summary

In Jefferson v Temco Services Industries, Inc., 272 AD2d 196, 708 NYS2d 21 (1st Dep't 2000), plaintiff failed to raise a triable issue with respect to his claim premised on the purportedly defective design of the handrail, because he offered no non-speculative ground in support of his theory that he would have recovered his footing had the handrail projected an additional quarter-inch from the wall and so been free of the claimed defect (see, Salzo v Bedding Showcase, 238 AD2d 180, l v denied 90 NY2d 806).

Summary of this case from Gonzalez v. 191st Street Associates, LLC

Opinion

May 18, 2000.

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered on or about March 30, 1999, which granted the summary judgment motion of defendants Touko America Co. and Montrose Realty and the cross motions for summary judgment of third-party defendant Chemical Bank and defendant Temco Industries, dismissing the complaint, third-party complaint, and all cross claims, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered October 18, 1999, which deemed plaintiff's motion as one for reargument and denied it as such, unanimously dismissed, without costs, as taken from a nonappealable paper.

Richard K. Hershman, for plaintiff-appellant.

Andrew Zajac, James F. Mullen, Ira J. Gold, for defendants-respondents.

Ira J. Gold, for plaintiff-respondent.

Marie R. Hodukavich, for defendant-respondent.

Before: Williams, J.P., Tom, Mazzarelli, Buckley, JJ.


Since there was no proof that plaintiff's failure to comply with a disclosure request pursuant to CPLR 3101(d)(1)(I) was willful or prejudicial, that failure should not have been utilized to preclude the affidavit of plaintiff's expert (see, McDermott v. Alvey, Inc., 198 A.D.2d 95; Busse v. Clark Equip. Corp., 182 A.D.2d 525). Nevertheless, even when that affidavit is taken into consideration, plaintiff fails to raise a triable issue of fact as to whether any defendant had actual or constructive notice of the alleged wet condition of the landing, plaintiff, when deposed, having testified that on the occasion of his accident the steps were dry, that it was only drizzling, and that people were not carrying umbrellas (see, Cottingham v. Hammerson Fifth Ave., Inc., 259 A.D.2d 348). Plaintiff's speculative hypothesis, based primarily on the observations of his expert 11 months after the accident, that his accident may have been caused by the negligent application of wax to slip-resistant strips on the stairs, is patently insufficient to raise a triable issue, particularly in light of plaintiff's deposition testimony that he had never touched the strips in question (see, Pagan v. Local 23-25 Intl. Ladies Garment Workers Union, 234 A.D.2d 37). Finally, plaintiff has failed to raise a triable issue with respect to his claim premised on the purportedly defective design of the handrail, because he has offered no non-speculative ground in support of his theory that he would have recovered his footing had the handrail projected an additional quarter-inch from the wall and so been free of the claimed defect (see, Salzo v. Bedding Showcase, Inc., 238 A.D.2d 180, lv denied 90 N.Y.2d 806).

We have reviewed plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


Summaries of

Jefferson v. Temco Services Industries

Appellate Division of the Supreme Court of New York, First Department
May 18, 2000
272 A.D.2d 196 (N.Y. App. Div. 2000)

In Jefferson v Temco Services Industries, Inc., 272 AD2d 196, 708 NYS2d 21 (1st Dep't 2000), plaintiff failed to raise a triable issue with respect to his claim premised on the purportedly defective design of the handrail, because he offered no non-speculative ground in support of his theory that he would have recovered his footing had the handrail projected an additional quarter-inch from the wall and so been free of the claimed defect (see, Salzo v Bedding Showcase, 238 AD2d 180, l v denied 90 NY2d 806).

Summary of this case from Gonzalez v. 191st Street Associates, LLC
Case details for

Jefferson v. Temco Services Industries

Case Details

Full title:ROBERT JEFFERSON, PLAINTIFF-APPELLANT, v. TEMCO SERVICES INDUSTRIES, INC.…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: May 18, 2000

Citations

272 A.D.2d 196 (N.Y. App. Div. 2000)
708 N.Y.S.2d 21

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