Opinion
March 18, 1996
Appeal from the Supreme Court, Kings County (Ramirez, J.).
Ordered that the appeal from the order dated December 9, 1994, is dismissed; and it is further,
Ordered that the order dated November 22, 1994, is affirmed; and it is further,
Ordered that the respondents are awarded one bill of costs.
The Supreme Court providently exercised its discretion in precluding the use of an expert and any expert affidavit due to the plaintiffs' failure to timely respond to disclosure demands (see, CPLR 3101 [d] [1]; Vigilant Ins. Co. v. Barnes, 199 A.D.2d 257; Bauernfeind v. Albany Med. Ctr. Hosp., 195 A.D.2d 819; Robinson v New York City Hous. Auth., 183 A.D.2d 434, 435). Accordingly, summary judgment was warranted as the plaintiffs could not make a prima facie showing that the respondents either created the alleged defective condition that caused the injured plaintiff's fall or that they had actual or constructive notice of the condition (see, e.g., Bauernfeind v. Albany Med. Ctr. Hosp., supra; Robinson v. New York City Hous. Auth., supra; see also, Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969; Cafiero v. Inserra Supermarkets, 195 A.D.2d 681, 682, affd 82 N.Y.2d 787; Pirillo v. Longwood Assocs., 179 A.D.2d 744, 745). Even if this Court were to consider the expert affidavits and photographs which were based on an examination of the steps some two years after the incident, the evidence is wholly conclusory and fails to establish that a hazardous condition existed on the day of the incident or that the respondents had any notice, actual or constructive, of the alleged hazardous condition (see, Murphy v Conner, 84 N.Y.2d 969, 972, citing Trimarco v Klein, 56 N.Y.2d 98, 106; Anis v Associated Rest. Mgt. Corp., 202 A.D.2d 459, 460; Drillings v Beth Israel Med. Ctr., 200 A.D.2d 381, 382).
The appeal from the denial of the plaintiffs' motion, denominated as a motion for renewal and reargument, is dismissed. The motion was actually one for reargument as the alleged "new" evidence contained in a second affidavit by the same expert was within the plaintiffs' knowledge at the time of the original motions (see, Grassel v Albany Med. Ctr. Hosp., 223 A.D.2d 803; Drillings v Beth Israel Med. Ctr., supra, at 382; Dunn v American Home Assur. Co., 158 A.D.2d 505, 507). No appeal lies from the denial of reargument.
We have considered the plaintiffs' remaining contentions and find them to be without merit. Balletta, J.P., O'Brien, Altman and Friedmann, JJ., concur.