SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
285
CA 16-00574
PRESENT: LINDLEY, J.P., DEJOSEPH, NEMOYER, AND TROUTMAN,
DOROTHY SLOMCZEWSKI, PLAINTIFF-RESPONDENT,
V MEMORANDUM AND ORDER
JAMES A. ROSS, AMY A. LINEHAN AND ACEA MOSEY,
PUBLIC ADMINISTRATOR OF THE ESTATE OF ASSUNTA
ROSS, DECEASED, DEFENDANTS-APPELLANTS.
BROWN & KELLY, LLP, BUFFALO (DONALD B. EPPERS OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.
THE HIGGINS KANE LAW GROUP, P.C., BUFFALO (TERRENCE P. HIGGINS OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.
Appeal from a judgment of the Supreme Court, Erie County (John L.
Michalski, A.J.), entered January 19, 2016. The judgment awarded
plaintiff money damages upon a jury verdict.
It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs and a new trial is
granted.
Memorandum: Plaintiff commenced this action to recover damages
for injuries she sustained when she fell down some steps outside a
residence owned by defendants. According to plaintiff, her fall was
attributable to the nonuniform configuration of the steps and the fact
that the wrought iron stair railing broke off from its anchorages in
the concrete steps as plaintiff held onto it. Defendants appeal from
a money judgment entered in favor of plaintiff on the basis of a jury
verdict rendered at a second trial (conducted after an initial
mistrial) on the issues of liability and damages.
We reject defendants’ contention that Supreme Court erred, in a
ruling made before the first trial and continued in effect for the
second, in precluding the individual who repaired and replaced the
railing following the accident from testifying as a fact witness with
respect to the condition of the railing at the time of the accident.
CPLR 3101 (a) provides that, “[g]enerally[,] [t]here shall be full
disclosure of all matter material and necessary in the prosecution or
defense of an action, regardless of the burden of proof.” “Although
the CPLR does not specifically mention the names and addresses of
witnesses or create any disclosure device for obtaining such
information, it is within a court’s discretion to require a party to
disclose the names and addresses of witnesses to transactions,
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CA 16-00574
occurrence, admissions and the like . . . Thus, a party may reasonably
be required to disclose the name and address of a witness whose
identity it has learned in investigating a case but of whom the
opposing party is ignorant” (Hunter v Tryzbinski, 278 AD2d 844, 844-
845). Here, in view of defendants’ prolonged and almost complete
disregard of their pretrial disclosure obligations with regard to the
identity of a known fact witness, it was reasonable for the court to
preclude the individual from testifying as a fact witness.
We nevertheless conclude that it was an abuse of discretion to
preclude that individual from testifying as an expert at the second
trial given the timeliness and sufficiency of defendants’ expert
disclosure (see Tronolone v Praxair, Inc., 39 AD3d 1146, 1147; Green v
Kingdom Garage Corp., 34 AD3d 1373, 1374; cf. Maggio v Dougherty, 130
AD3d 1446, 1446-1447). We further agree with defendants that, in
reversing on the eve of the second trial its initial ruling permitting
that very expert testimony, the court abused its discretion in denying
defendants’ request for a reasonable continuance and thereby giving
them only 24 hours in which to retain a new expert, which they were
unable to do in such a short time frame (see Wai Ming Ng v Tow, 260
AD2d 574, 574; see also Chamberlain v Dundon [appeal No. 2], 61 AD3d
1378, 1379; Balogh v H.R.B. Caterers, 88 AD2d 136, 140-141).
Entered: March 24, 2017 Frances E. Cafarell
Clerk of the Court