Redmond v. Redmond

• Decision Date: 25 July 2018
• Docket Number: 768 CA 18-00153
• Parties: HOLLY M. REDMOND, PLAINTIFF-APPELLANT, v. DENIS M. REDMOND AND CANDACE G. REDMOND, DEFENDANTS-RESPONDENTS.
• Court: New York Supreme Court — Appellate Division

2018 NY Slip Op 05417

HOLLY M. REDMOND, PLAINTIFF-APPELLANT,
v.
DENIS M. REDMOND AND CANDACE
G. REDMOND, DEFENDANTS-RESPONDENTS.

768 CA 18-00153

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department

Decided on July 25, 2018

PRESENT: WHALEN, P.J., CARNI, LINDLEY, DEJOSEPH, AND WINSLOW, JJ.

MAXWELL MURPHY, LLC, BUFFALO (ALAN D. VOOS OF COUNSEL), FOR PLAINTIFF-APPELLANT.

BARTH SULLIVAN BEHR, BUFFALO (LAURENCE D. BEHR OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.

Appeal from an order of the Supreme Court, Niagara County (Frank Caruso, J.), entered October 12, 2017. The order, among other things, granted the motion of defendants to strike plaintiff's expert witness disclosure and precluded plaintiff's expert witness from testifying at trial.

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying those parts of defendants' motion seeking to strike plaintiff's expert witness disclosure and to preclude plaintiff's expert witness from testifying at trial regarding the 2010 Residential Code of New York State and the 2007 American National Standard Institute/National Spa and Pool Institute standard for aboveground/onground residential swimming pools, and reinstating the expert witness disclosure to that extent, and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for personal injuries she allegedly sustained by striking her head on the bottom of an aboveground swimming pool after sliding head first down a water slide. Plaintiff alleges that defendants were negligent with respect to the construction, ownership, use and control of their swimming pool and its component parts. Plaintiff's expert witness disclosure indicated that plaintiff's aquatic safety expert would testify that defendants' installation of a water slide on their aboveground swimming pool violated 16 CFR part 1207, which provides safety standards for swimming pool slides issued by the Consumer Product Safety Commission; the 2007 American National Standard Institute/National Spa and Pool Institute standard for aboveground/onground residential swimming pools (ANSI/NSPI-4); the Residential Code of New York State; and the Village of Wilson Zoning Law § 170-23. Defendants moved in limine seeking to strike plaintiff's expert witness disclosure and preclude the expert from testifying at trial. Supreme Court granted defendants' motion, and plaintiff appeals.

Initially, we...