Salzo v. Bedding Showcase, Inc.
| Decision Date | 10 April 1997 |
| Citation | 238 A.D.2d 180,656 N.Y.S.2d 236 |
| Parties | Anthony SALZO, et al., Plaintiffs-Respondents, v. BEDDING SHOWCASE, INC., Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
Jerome Turner, for Plaintiffs-Respondents.
Christopher A. Bacotti, Debra J. Guzov, for Defendant-Appellant.
Before MURPHY, P.J., and WILLIAMS, TOM and MAZZARELLI, JJ.
Order, Supreme Court, Bronx County (Anne Targum, J.), entered April 21, 1995, which denied defendant's motion for summary judgment, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed. The Clerk is directed to enter judgment in favor of defendant-appellant dismissing the complaint.
In view of plaintiffs' counsel's assertion that during the period in question, his two-year-old grandson was diagnosed with, and subsequently succumbed to, Tay Sachs disease, coupled with counsel's status as a sole practitioner, and the failure of defendant to move for a default judgment, we find that the IAS court's decision to overlook plaintiffs' short delay in filing opposition papers, especially where no prejudice was demonstrated, was a proper exercise of discretion (see, CPLR 2005; Busa v. Busa, 196 A.D.2d 267, 609 N.Y.S.2d 452).
However, we agree with defendant that the IAS court erred when it considered the affidavit of plaintiffs' purported expert on tires, submitted in sur-reply, whose identity and credentials were never revealed to defendant despite demand for such discovery, and whose expertise cannot be ascertained, or even speculated upon, in his one and one-half page affidavit (see, Mankowski v. Two Park Co., 225 A.D.2d 673, 639 N.Y.S.2d 847; Vigilant Ins. Co. v. Barnes, 199 A.D.2d 257, 604 N.Y.S.2d 248).
In order to set forth a prima facie case of negligence, plaintiffs must demonstrate that defendant's negligence was a substantial cause of the events which led to the injury (Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666; Klapa v. O & Y Liberty Plaza Co., 218 A.D.2d 635, 631 N.Y.S.2d 21). In the matter before us, plaintiffs' unsupported and often contradictory assertions, without an opinion from an expert, concerning whether the truck the injured plaintiff was driving had mismatched tires, and how they may have contributed to the accident, if at all, fail to raise a triable issue of fact as to whether defendant's alleged negligence in maintaining the truck was a substantial...
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...a demand for expert witnesses under CPLR 3101(d) and submitted in opposition to a summary judgment motion (see Salzo v. Bedding Showcase, 238 A.D.2d 180, 656 N.Y.S.2d 236 [1997], lv. denied 90 N.Y.2d 806, 663 N.Y.S.2d 511, 686 N.E.2d 223 [1997] ). The court further found Jennifer's medical ......
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...in opposition to its motion for summary judgment should not have been considered by the Supreme Court (see, Salzo v. Bedding Showcase, 238 A.D.2d 180, 656 N.Y.S.2d 236; Mankowski v. Two Park Co., 225 A.D.2d 673, 639 N.Y.S.2d 847; Robinson v. New York City Housing Authority, 183 A.D.2d 434, ......
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...outcome of the motions if it were used. Plaintiff failed to give defendants sufficient notice of an expert witness. (Salzo v. Bedding Showcase, 238 A.D.2d 180 [1st Dept 1997] ). However, while plaintiff's expert's report was not considered on this motion, the branch of plaintiff's motion th......
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