Redmond v. Redmond

• Decision Date: 25 July 2018
• Docket Number: CA 18–00153,768
• Citation: 163 A.D.3d 1475,83 N.Y.S.3d 754
• Parties: Holly M. REDMOND, Plaintiff–Appellant, v. Denis M. REDMOND and Candace G. Redmond, Defendants–Respondents.
• Court: New York Supreme Court — Appellate Division

163 A.D.3d 1475
83 N.Y.S.3d 754

Holly M. REDMOND, Plaintiff–Appellant,
v.
Denis M. REDMOND and Candace G. Redmond, Defendants–Respondents.

768
CA 18–00153

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: July 25, 2018

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

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

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

MEMORANDUM AND ORDER

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

83 N.Y.S.3d 756

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 note that the order granting...