Summary
In Cruz v City of New York, 81 AD3d 505 [1st Dept. 2011], the appellate court held that the failure of plaintiff's counsel to reveal in discovery the affidavits of two eyewitnesses to an accident that had been prepared before the action's commencement was excusable, especially where the failure was the product of demonstrable law office failure and there was no prejudice to the defendant since they could be deposed before trial.
Summary of this case from Hanan v. Bremen House Inc.Opinion
No. 4157.
February 17, 2011.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered December 8, 2009, which granted defendant's motion for summary judgment dismissing the complaint and denied plaintiffs motion to strike the note of issue to allow further discovery, unanimously modified, on the law, defendant's motion denied, and plaintiffs motion granted to the extent of permitting post-note of issue discovery concerning two notice witnesses, and otherwise affirmed, without costs.
Raymond Schwartzberg Associates, PLLC, New York (Raymond B. Schwartzberg of counsel), for appellant.
Michael A. Cardozo, Corporation Counsel, New York (Mordecai Newman of counsel), for respondent.
Before: Andrias, J.P., Sweeny, Moskowitz, DeGrasse and Abdus-Salaam, JJ.
Plaintiff alleges that she was injured when she slipped and fell on a wet floor in the restroom of a public park. Defendant failed to satisfy its initial burden of showing prima facie that it lacked actual or constructive notice of the alleged hazard, since the testimony of defendant's park supervisor regarding general daily maintenance procedures failed to identify the last time the bathroom had been checked or cleaned before the accident occurred ( see Moser v BP/CG Ctr. I, LLC, 56 AD3d 323). Moreover, the park supervisor had no personal knowledge of the condition of the restroom at the time of the accident or during the hours immediately preceding it ( see Lebron v Napa Realty Corp., 65 AD3d 436).
As plaintiffs failure to disclose witness affidavits prepared before the commencement of the action was the result of law office failure, and plaintiff referred to both witnesses in her General Municipal Law § 50-h examination, the witnesses' testimony need not be precluded, so long as defendant is afforded an opportunity to depose the witnesses before trial ( see Spitzer v 2166 Bronx Park E. Corps., 284 AD2d 177; Alabadla v New York City Tr. Auth., 276 AD2d 278; O'Callaghan v Walsh, 211 AD2d 531; 22 NYCRR 202.21 [d]).