NY 1st Dept: Undisclosed Notice Witness Can't Defeat Summary Judgment Motion
November 9, 2009
In <i>Garcia v. Good Home Realty</i>, the plaintiff claimed that she slipped and fell on wet stairs in the defendant's building. She initially testified that she did not know the source of the water, but later submitted an affidavit that the steps appeared recently mopped. In support of its summary judgment motion based on lack of notice, the property owner submitted an affidavit from its porter who stated that he had not mopped the stairs that morning. In opposition, the plaintiff submitted an affidavit from her brother-in-law who stated that he noticed the soapy condition of the stairs shortly before the accident. The Appellate Division held that the affidavit was insufficient to defeat the motion because the brother-in-law had not been previously disclosed as a witness and that submitting an affidavit from an undisclosed notice witness was improper.
Thanks to Bill Kirrane for his contribution to this post.