Gellerstein v. Mulvey's Marine Sport Shop

May 7, 2001
Versions:283 A.D.2d 397
723 N.Y.S.2d 891
2001 N.Y. App. Div. LEXIS 4693

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Queens County (Kitzes, J.), entered December 3, 1999, which, upon a jury verdict, is in favor of the defendants and against them dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

The trial court properly allowed the defense witness to testify. Despite the defendants’ failure to provide his address, there is no indication that they willfully failed to comply with the ordered disclosure, and the plaintiffs were aware of the identity of the witness well before trial (see, Malcolm v Darling, 233 AD2d 425, 426; DeJesus v Finnegan, 137 AD2d 649, 650; Bermudez v Laminates Unlimited, 134 AD2d 314, 315). The trial court also properly charged the jury on the emergency doctrine. A reasonable view of the trial evidence warranted the charge (see, Rivera v New York City Tr. Auth., 77 NY2d 322, 326-328; Fuller v Brady, 242 AD2d 522; Donaldson v Kilgore, 187 AD2d 1018; see also, Caristo v Sanzone, 96 NY2d 172). Ritter, J. P., S. Miller, McGinity and Townes, JJ., concur.