Collazo v. Riverbay Co-op

104 A.D.3d 555, 960 N.Y.S.2d 643

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 2013
• Status: Published

Opinion

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 plaintiffs 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 AD2d 568 [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 AD2d 480 [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. Concur — Tom, J.P, Mazzarelli, Saxe, Moskowitz and ManzanetDaniels, JJ.