dissent in a memorandum by Sweeny, J., as follows: The trial court erred in not allowing Mr. Peralta to testify on plaintiffs case. Accordingly, I dissent and vote to reverse and set the matter down for a new trial.
Contrary to the argument of the majority, it is irrelevant that the plaintiff did not conduct a sufficient investigation before the trial to identify Mr. Peralta as a potential witness. It was the defendant who pointed out in its opening statement Mr. Peralta might testify. Therefore, defendant certainly could not claim any surprise or prejudice. Furthermore, it was conceded that Mr. Peralta was available to testify that day. Therefore, even if *135defendant needed a brief adjournment to bring in its investigator there would have been no more than a minimal delay in the trial.
The cases relied upon by the majority (Shmueli v Corcoran Group, 29 AD3d 309 [2006]; and Paek v City of New York, 28 AD3d 207 [2006]) actually support plaintiff’s position. In Shmueli, the witnesses were not allowed to testify because the plaintiff failed to notify the defendants until the eve of trial as to their availability, even though the plaintiff learned of them during discovery. In Paek, the witness was not noticed until the final day of the trial. At the very least, there were, in both cases, questions whether the proffered testimony would be material. Here, the witness would have testified that contrary to defendant’s argument, plaintiff fell on defendant’s ramp and not the sidewalk. This testimony of a nonbiased witness would highlight the issue of defendant’s negligent maintenance of the ramp as a proximate cause of the accident. This was clearly material, and its exclusion was prejudicial to plaintiffs case.