Casilari v. CondonCasilari v. Condon
James J. Toomey, New York, NY (Evy L. Kazansky of counsel), for appellant.
Raskin & Kremins, LLP, New York, NY (Rhonda Katz of counsel), for respondents.
DECISION & ORDER
In an action to recovеr damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Kings County (Carl J. Landicino, J.), dated December 11, 2018. The order, insofar as appeаled from, denied those branches of the defendant‘s motion which were for summary judgment dismissing the causеs of action alleging a violation of
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the defendant‘s motion which were for summary judgmеnt dismissing the causes of action alleging a violation of
The plaintiff Jose Casilari (hereinafter the injured plaintiff) allegedly was injured when he fell 8 to 10 feet to the ground from a deck while removing a window at a single-family home owned by the defendant. The defendant was not residing at the premises during the renovations nor was he present on the date of the accident. The injured plaintiff allegedly was standing on a five-gallon bucket and using a crowbar to remove the window from the house‘s exterior wall. According to the injured plaintiff, as he lifted the window out of the wall, he stepped bаckwards and fell through an unguarded stairwell opening in the deck from which the staircase had been removed. According to the defendant, he was last present at the site about two days prior to the accident, at which time the stairwell opening was covered, and the stairs were still in рlace.
The injured plaintiff, and his wife suing derivatively, commenced this action to recover damages for personal injuries, alleging violations of
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Here, the defendant established, prima facie, that he did not exercise supervision or control over the performance of the work giving rise to the accident (see Poulin v Ultimate Homes, Inc., 166 AD3d at 670; see Suconota v Knickerbocker Props., LLC, 116 AD3d at 508-509). Further, to the extent that the аccident could be viewed as arising from a dangerous or defective premises conditiоn at the work site, the defendant established, prima facie, that he did not create or have actual or constructive notice of the alleged dangerous condition (see Tukshaitov v Young Men‘s & Women‘s Hebrew Assn., 180 AD3d 1101).
In opposition, the plaintiffs failed to raise a triable issue of fact. We disagree with the Supreme Court‘s determination to consider the affidavit of a nonparty witness submitted by the plaintiffs in opposition to the defendant‘s motion. In his discovery demands, the defendant sought disclosure of, inter alia, the namе of any witness who had actual notice of the alleged condition, or the nature and duration of such condition. The nonparty witness was not disclosed in the plaintiffs’ discovery responses, the plaintiffs failed to offer an excuse for their failure to do so, and nothing that transpired during discovery would have alerted the defendant of the potential significance of the nonparty‘s testimony (see Henry v Higgins, 117 AD3d 796, 797; see also Gallway v Muintir, LLC, 142 AD3d 948, 949-950; cf. Dume v CK-HP 1985 Marcus Ave., LLC, 136 AD3d 860, 861; Sadler v Brown, 108 AD2d 739, 740-741).
Accordingly, the Supreme Court should have granted those branches of the defendant‘s motion which were for summary judgment dismissing the causes of action alleging a violation of
BALKIN, J.P., ROMAN, LASALLE and CONNOLLY, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court