Downes v. Am. Monument Co.

• Decision Date: 15 May 2001
• Citation: 283 AD2d 256,724 N.Y.S.2d 610
• Parties: (A.D. 1 Dept. 2001) John Downes, Plaintiff-Respondent, v. American Monument Co., Defendant-Appellant, and Rovelli Monument Co., et al., Defendants. [And A Third Party Action) 4177 : FIRST JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 610

724 N.Y.S.2d 610 (A.D. 1 Dept. 2001)

John Downes, Plaintiff-Respondent, v. American Monument Co., Defendant-Appellant, and Rovelli Monument Co., et al., Defendants.

[And A Third Party Action)

4177

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FIRST JUDICIAL DEPARTMENT

May 15, 2001

Herald Price Fahringer - for plaintiff-respondent, Daniel A. Seymour - for defendant-appellant.

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 plaintiff's expert witness in opposition to summary judgment, notwithstanding plaintiff's 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 A.D.2d 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 plaintiff's injuries were caused thereby.

Rosenberger, J.P., Mazzarelli, Andrias, Buckley, Friedman, JJ., concur.