Covell v. Slocum

Appeal from an order and judgment (one paper) of the Supreme Court, Niagara County (Frank Caruso, J.), entered March 11, 2014. The order and judgment granted the motion of defendant for summary judgment dismissing the complaint.

It is hereby ordered that the order and judgment so appealed from is unanimously reversed on the law without costs, the motion is denied, and the complaint is reinstated.

Even assuming, arguendo, that defendant met her initial burden on the motion, we conclude that plaintiff’s opposing papers demonstrated the existence of a triable issue of fact requiring denial of defendant’s motion. Specifically, plaintiff submitted the affidavit of a witness who averred that, immediately after the accident, defendant essentially stated that she had not seen plaintiff prior to the collision. We reject defendant’s contention that we should decline to consider that witness’s affidavit because plaintiff failed to disclose the witness’s identity and/or defendant’s alleged statements in responding to defendant’s discovery demands. Although defendant’s “admissions” should have been disclosed during discovery, “there is no indication that the failure to do so was willful or contumacious” and, therefore, the affidavit “may properly be considered in opposition to defendant [’s] motion” (Schaaf v Pork Chop, Inc., 24 AD3d 1277 , 1278 [2005]). Nevertheless, in light of plaintiff’s failure to disclose, we further conclude that, upon appropriate motion from defendant, the court should afford defendant additional rights of discovery pursuant to Uniform Rules for Trial Courts (22 NYCRR) § 202.21 (d) (see generally Gendusa v Yu Lin Chen, 71 AD3d 1085 , 1086 [2010]; Schaaf, 24 AD3d at 1278 ). Present — Centra, J.P., Peradotto, Lindley and DeJoseph, JJ.