Downes v. American Monument Co.

Appellate Division of the Supreme Court of New York

Downes v. American Monument Co.

283 A.D.2d 256, 724 N.Y.S.2d 610, 2001 N.Y. App. Div. LEXIS 5065

Appellate Division of the Supreme Court of the State of New York·Decided May 15, 2001·Published·Cited by 3 cases

Opinion

—Order, Supreme Court, Bronx County (George Friedman, J.), entered March 11, 1999, which, in an action by a grave digger for personal injuries sustained when a gravestone installed by defendant-appellant fell on him, insofar as appealed from, denied appellant’s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

The motion court properly considered the affidavit of plaintiffs expert witness in opposition to summary judgment, notwithstanding plaintiffs failure to disclose the expert’s identity previously pursuant to CPLR 3101 (d) (1) (i), there being no showing of willfulness in or prejudice caused by the failure to disclose earlier (see, McDermott v Alvey, Inc., 198 AD2d 95). Upon consideration of that affidavit, issues of fact exist as to whether the method appellant used to attach the gravestone to its base was negligent, and, if so, whether plaintiffs injuries were caused thereby. Concur — Rosenberger, J. P., Mazzarelli, Andrias, Buckley and Friedman, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

—Order, Supreme Court, Bronx County (George Friedman, J.), entered March 11, 1999, which, in an action by a grave digger for personal injuries sustained when a gravestone installed by defendant-appellant fell on him, insofar as appealed from, denied appellant’s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

The motion court properly considered the affidavit of plaintiffs expert witness in opposition to summary judgment, notwithstanding plaintiffs failure to disclose the expert’s identity previously pursuant to CPLR 3101 (d) (1) (i), there being no showing of willfulness in or prejudice caused by the failure to disclose earlier (see, McDermott v Alvey, Inc., 198 AD2d 95). Upon consideration of that affidavit, issues of fact exist as to whether the method appellant used to attach the gravestone to its base was negligent, and, if so, whether plaintiffs injuries were caused thereby. Concur — Rosenberger, J. P., Mazzarelli, Andrias, Buckley and Friedman, JJ.

Downes v. American Monument Co., 283 A.D.2d 256, 724 N.Y.S.2d 610, 2001 N.Y. App. Div. LEXIS 5065 (N.Y. Ct. App. 2001).

Pincite

283 A.D.2d 256 (Downes v. American Monument Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related