Jefferson v. Temco Services Industries, Inc.
| Decision Date | 18 May 2000 |
| Citation | 708 N.Y.S.2d 21,272 A.D.2d 196 |
| Parties | ROBERT JEFFERSON, Appellant,<BR>v.<BR>TEMCO SERVICES INDUSTRIES, INC., et al., Respondents.<BR>MONTROSE REALTY CO., Third-Party Plaintiff-Respondent,<BR>v.<BR>CHEMICAL BANK, Third-Party Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Concur — Williams, J. P., Tom, Mazzarelli and Buckley, JJ.
Since there was no proof that plaintiff's failure to comply with a disclosure request pursuant to CPLR 3101 (d) (1) (i) was willful or prejudicial, that failure should not have been utilized to preclude the affidavit of plaintiff's expert (see, McDermott v Alvey, Inc., 198 AD2d 95; Busse v Clark Equip. Co., 182 AD2d 525). Nevertheless, even when that affidavit is taken into consideration, plaintiff fails to raise a triable issue of fact as to whether any defendant had actual or constructive notice of the alleged wet condition of the landing, plaintiff, when deposed, having testified that on the occasion of his accident the steps were dry, that it was only drizzling, and that people were not carrying umbrellas (see, Cottingham v Hammerson Fifth Ave., 259 AD2d 348). Plaintiff's speculative hypothesis, based primarily on the observations of his expert 11 months after the accident, that his accident may have been caused by the negligent application of wax to slip-resistant strips on the stairs, is patently insufficient to raise a triable issue, particularly in light of plaintiff's deposition testimony that he had never touched the strips in question (see, Pagan v Local 23-25 Intl. Ladies Garment Workers Union, 234 AD2d 37). Finally, plaintiff has failed to raise a triable issue with respect to his claim premised on the purportedly defective design of the handrail, because he has offered no non-speculative ground in support of his theory that he would have recovered his footing had the handrail projected an additional quarter-inch from the wall and so been free of the claimed defect (see, Salzo v Bedding Showcase, 238 AD2d 180, lv denied 90 NY2d 806).
We have reviewed plaintiff's remaining arguments and find them unavailing.
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Rose v. Via Alloro, Inc.
...L.P., 85 A.D.3d 554, 555 (1st Dep't 2011); Downes v. American Monument Co., 283 A.D.2d 256 (1st Dep't 2001); Jefferson v. Temco Servs. Indus., 272 A.D.2d 196 (1st Dep't 2000). Schwalje inspected defendants' premises July 20 and 28, 2010, and based on the deposition testimony of Angelina Mal......
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Pezzello v. Pierre Cong. Apartments, LLC
...where plaintiff failed to present any evidence to connect the absence of a handrail to her fall]; Jefferson v. Temco Services Industries, 272 A.D.2d 196, 708 N.Y.S.2d 21 [1st Dept 2000] [granting defendants' motion for summary dismissal where plaintiff offered no non-speculative support for......
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Montesinos v. Daly, 2009 NY Slip Op 30782(U) (N.Y. Sup. Ct. 4/2/2009)
...by the trier of fact as to the cause of the accident would be based upon sheer speculation". Id; See Jefferson v. Temco Servs. Indus., 272 A.D.2d 196 (1st Dept. 2000) (plaintiff offered no nonspeculative support for theory mat he would have recovered footing if handrail had projected an add......
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Baulieu v. Ardsley Associates
...testimony ( see generally Downes v. American Monument Co., 283 A.D.2d 256, 724 N.Y.S.2d 610 [2001]; Jefferson v. Temco Servs. Indus., 272 A.D.2d 196, 708 N.Y.S.2d 21 [2000] ). The evidence did not raise a triable issue of fact as to whether ISJ, as managing agent to mall owner Ardsley LP, o......