Hanan v Bremen House Inc.

[*1] Hanan v Bremen House Inc. 2012 NY Slip Op 50545(U) Decided on March 28, 2012 Supreme Court, Queens County Markey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 28, 2012
Supreme Court, Queens County

Rachel Hanan, as Executrix of the Estate of Camille Lelia, Plaintiffs,

against

Bremen House Inc., Defendant.



27300/2009



For the Plaintiff: Sacco & Fillas, LLC, by Kenneth G. Esehak, Esq., 31-19 Newtown Ave., Astoria, New York 11102

For the Defendant: Smith, Mazure, Director, Wilkins, Young and Yagerman, by Evan Yagerman, Esq., 111 John St., New York, New York 10038

Charles J. Markey, J.

The following papers numbered were read on this motion:Papers Numbered

Notices of Motion, Affirm., Exhibits...................................................................................1

Affirmations in Opposition..................................................................................................2

Affirmations in Reply...........................................................................................................3

CHARLES J. MARKEY, J.:

Prior to her death, plaintiff, Camille Lelia, while 79 years old, was allegedly injured when, on November 24, 2007, she stumbled on defective pavement in a parking lot of a restaurant located at 271-11 Union Turnpike, New Hyde Park, in Queens County, New York. In the determination of the present defense motion for summary judgment, the Court has read all the papers and exhibits, including the transcripts of the examinations before trial of the parties to the action.

The action for personal injuries is maintained by her daughter, Rachael Hanan, the executrix of her late mother's estate.[FN1] Defense counsel seeks summary judgment because [*2]of the recent disclosure of a witness to the fall. Specifically, in opposition to the present defense motion for summary judgment, seeking the dismissal of the complaint, plaintiff submits the affidavit of Dolores Goodbody-Cody and the affidavit of a professional engineer, Herbert W. Braunstein, buttressed by photographs of the defective pavement that led to Camille Lelia's fall.

Goodbody-Cody attests, in her fact-filled affidavit, that she was present at the accident and witnessed the fall and the defective pavement in the parking lot that caused Lelia's fall. Braunstein, in his well-prepared, convincing affidavit, discusses the dangerous condition resulting in the fall and accompanies his presentation with photographs. These affidavits are essential to plaintiff's ability to survive the present motion for summary judgment by defendant.

Defendant, in seeking the complaint's dismissal, complains of the late revelation of Goodbody-Cody's existence and urges the Court to disregard it. Defense counsel attached a copy of a demand for disclosure of names and witnesses of eyewitnesses, dated in June, 2011, sent to plaintiff's counsel. Plaintiff presumably did not reply to it, but the papers on this motion are silent as to whether the plaintiff responded. Defense counsel argues, in reply, that the Court should grant the motion for summary judgment dismissing the complaint since the defendant has been prejudiced by plaintiff's counsel failure to disclose Goodbody-Cody's existence until the opposition papers of the summary judgment motion.

Defense counsel, Evan Yagerman, Esq., correctly cites the holding of the Appellate Division, First Judicial Department, in Ravagnan v One Ninety Realty Co., 64 AD3d 481 [2009]. In Ravagnan, the appellate court reversed the IAS Court's denial of the defense summary judgment motion and held that plaintiff could not oppose the motion for summary judgment by submitting the affidavit of her daughter who was not previously identified as a witness to the accident. Accord, Caraballo v Rivas-Barzola, 92 AD3d 532 [1st Dept. 2012] [evidence of plaintiff's eyewitness to the accident was precluded because plaintiff failed to disclose in discovery the eyewitness's identity]; Moore v City of New York, 85 AD3d 623, 624 [1st Dept. 2011] [same]. [*3]

The case law cited by the diligent defense counsel is inviting. The facts of those cases, however, of Ravagnan and its progeny, cited immediately above, are not like those in the case at bar. The defendant's demand for disclosure was dated June 8, 2011. The Court assumes arguendo that defense counsel mailed the disclosure demand on that date and also assumes arguendo, although not proven, that plaintiff's counsel did not respond to it or then reveal the existence of witnesses to the accident. The present defense motion for summary judgment, however, was made in July, 2011, soon after the defendant's demand for disclosure, basically not affording sufficient time for the plaintiff to respond. If plaintiff did respond to the demand, such response was not attached to the defendant's motion papers.

Plaintiff's counsel has taken on the representation and advocacy of plaintiff's action for personal injuries constrained by the boggling burden that the plaintiff's mother who suffered the fall, Camille Lelia, is dead and thus important facts are unavailable. The plaintiff Hanan, Lelia's daughter and executrix of the Estate, was not present at the parking lot when her mother fell. Hanan, at her deposition, consequently testified that she did not know the names of any witnesses to her mother's accident since she was not there.

This Court, cognizant of the difficulties and constraints that hamper plaintiff's counsel, will not make the circumstances surrounding its advocacy more difficult by denying the plaintiff the benefit of using the testimony of a crucial eyewitness to the accident whose identity has surfaced only recently. The circumstances of the present action and the late revelation of the eyewitness is far different from those facts of Ravagnan (64 AD3d 481, supra). In the present action, the plaintiff's counsel, constrained by the death of the woman who actually sustained the fall and physical injury, presumably had to undertake a huge amount of effort to locate Goodbody-Cody. In Ravagnan, by contrast, there was no death of the person who actually sustained the fall, and the identity of plaintiff's daughter as an eyewitness was always known to the plaintiff, who, when asked, should have made the disclosure known. The facts of Ravagnan make that case distinguishable.

In McHugh v Metro-North Commuter Railroad, 33 Misc 3d 1211(A), 2011 WL 4985525, 2011 NY Slip Op 51896(U), slip op at 3 [Sup Ct New York County 2011] [Edmead, J.], the court declined to preclude defendant from using the affidavit of an eyewitness whose identity was not previously disclosed during discovery since the plaintiff did not demonstrate that the failure to disclose was "willful, contumacious, or in bad faith."

In Cruz v City of New York, 81 AD3d 505 [1st Dept. 2011], the appellate court held [*4]that the failure of plaintiff's counsel to reveal in discovery the affidavits of two eyewitnesses to an accident that had been prepared before the action's commencement was excusable, especially where the failure was the product of demonstrable law office failure and there was no prejudice to the defendant since they could be deposed before trial.

The unique facts of the present action are even more compelling than those excused by the courts in Cruz (81 AD3d 505, supra) and McHugh (2011 WL 4985525, supra). While defendant claims unfairness by the late disclosure of the eyewitness, the failure of plaintiff's counsel to make an earlier disclosure of Goodbody-Cody's existence is understandable since Lelia, who sustained the accident, was dead, and her daughter, who commenced the action as the Executrix of her late mother's estate, was not present at the accident. Plaintiff's counsel had to undertake huge investigative efforts to locate the eyewitness, and there was no significant time gap in revealing her existence, since defense counsel followed its demand for eyewitnesses with the present summary judgment motion, in quick succession.

More important, the Court is able to cure any unfairness to the defendant by the arguably late disclosure by ordering additional discovery, including a deposition, before this case is called on the trial calendar on May 2, 2012. The Appellate Division, Second Judicial Department, in Gendusa v Yu Lin Chen, 71 AD3d 1085 [2010], excused the failure of plaintiff's counsel to disclose the existence of an eyewitness. In that case, even though defense counsel was aware of that eyewitness's existence, the appellate court noted: The trial court improvidently exercised its discretion in preluding the appellant from calling an eyewitness to the accident to testify at trial. Despite the failure of the appellant's counsel to provide the eyewitness's name and address, there is no indication that he willfully failed to comply with the preliminary conference order, the defendant was aware of the identity of the witness well before trial, and any prejudice could have been avoided by granting an adjournment of trial to allow the defendant to depose the witness

Gendusa, 71 AD3d at 1985.

On the present record, there is no indication that the defendant had previously been made aware, by its own investigation or efforts, of Goodbody-Cody's existence. See generally, Breen v Laric Entertainment Corp., 2 AD3d 298 [1st Dept. 2003] [plaintiff's [*5]failure to disclose previously the name of eyewitness was not willful, and defendant had actually known of such eyewitness]; Malcolm v Darling, 233 AD2d 425 [2nd Dept. 1996] [same]. What is important in the present case soon being called for trial, in this Court's analysis, is that since civil litigation should not be a matter of gamesmanship, and in light of defendant's sound efforts to eliminate surprise, that the defendant be afforded the opportunity to depose the eyewitness.

The Court, moreover, finds no wilful or contumacious behavior by the law firm of Sacco & Fillas, the plaintiff's counsel, in the late disclosure of the eyewitness's identity earlier, since such revelation was practically impossible. Plaintiff's lawyers were not trying to hide anything or undertaking some ruse, stratagem, or other mischievous, manipulative, and deceptive device in order to gain the upper hand. The Court, in light of the hardships already experienced by plaintiff's counsel in the advocacy of this action, will not throw any additional roadblocks on the path to trial, since any prejudice to the defendant is curable by ordering a deposition and in the absence of any gamesmanship by plaintiff's counsel.

By contrast, plaintiff's counsel, who easily could have not taken on the representation of Lelia's and the plaintiff's claim because of the difficulties in representing a case where the main subject died, should be lauded for having put in the time, expense, and effort to locate an eyewitness and to disclose that eyewitness's identity, as soon as practicable following the defense's discovery demand, prior to trial.

The affidavit of Goodbody-Cody was sufficiently detailed, and the affidavit of Braunstein, the engineer, was equally convincing and accompanied by probative proof of the phonographs. Both the Goodbody-Cody and Braunstein affidavits were in admissible form.

This action is appearing on the Trial Scheduling Part's calendar for assignment to a trial judge and jury selection on May 2, 2012. In order to cure any possible claim of prejudice to the defendant, this Court, accordingly, orders that the defendant, if so advised, may take the EBT of Goodbody-Cody at the law offices of plaintiff's counsel, at its offices in Astoria, in Queens County, on or before April 18, 2012, at 10:00 A.M., but no later than that date. The defense motion for summary judgment is thus denied, in all respects.

The foregoing constitutes the decision, order, and opinion of the Court. [*6]

______________________________Hon. Charles J. Markey

Justice, Supreme Court, Queens County

Dated: Long Island City, New York

March 28, 2012

Footnotes

Footnote 1: Plaintiff's counsel improperly changes the caption on her motion papers to say "Fiduciary," instead of "Executrix." The caption of a case on all motion papers must match that appearing on the original summons, except for any changes appearing on a properly filed supplemental summons, until the Court, by some order or so-ordered stipulation, has changed the caption. See, Prasad v Kone Inc., 2012 WL 954269, 2012 NY Slip Op 50513(U) [Sup Ct Queens County 2012] [decision by the undersigned]; Pollack v Ayres Assocs., 14 Misc 3d 1213(A), 2006 WL 3873341, 2006 NY Slip Op. 52527(U) [Sup Ct Kings County 2006].