From Casetext: Smarter Legal Research

Ravagnan v. One Ninety Realty Co.

Appellate Division of the Supreme Court of New York, First Department
Jul 21, 2009
64 A.D.3d 481 (N.Y. App. Div. 2009)

Summary

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.

Summary of this case from Hanan v. Bremen House Inc.

Opinion

Nos. 827, 828.

July 21, 2009.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered October 2, 2008, which, insofar as appealed from, denied the motions of defendants One Ninety Realty Company (190) and L'Occitane, Inc. (L'Occitane) for summary judgment dismissing the complaint and all cross claims as against them, or, in the alternative, for summary judgment on their cross claims against defendant Consolidated Edison Company of New York, Inc. (Con Ed) for common-law indemnification, unanimously reversed, on the law, without costs and the motions for summary judgment dismissing the complaint and all cross claims as against defendants 190 and L'Occitane granted. The Clerk is directed to enter judgment accordingly.

Kaufman Borgeest Ryan LLP, New York (Dennis J. Dozis of counsel), for One Ninety Realty Company, appellant.

Law Office of Thomas K. Moore, White Plains (Maria Sestito of counsel), for L'Occitane, Inc., appellant.

Hill Moin LLP, New York (Cheryl Eisberg Moin of counsel), for Lyda Ravagnan, respondent.

Before: Tom, J.P., Friedman, Nardelli, Buckley and Abdus-Salaam, JJ.


Plaintiff was injured when she fell after her foot became caught in a three-inch gap between two wooden shunt boards that were placed by Con Ed across the sidewalk to cover electrical cables that extended from a manhole in the street to the basement doorway of the building owned by 190. L'Occitane was the tenant of the ground-floor store in the building and the shunt boards were used in connection with an electrical upgrade of the building, triggered by L'Occitane's renovation of its store.

Dismissal of the complaint as against 190 and L'Occitane was warranted. These defendants made a prima facie showing that they had not created the dangerous condition and had neither actual nor constructive notice of the alleged defect in the shunt boards. In opposition to the motion, plaintiff submitted the affidavit of her daughter who stated that she saw the gap in the boards three months before the accident. This was the only evidence of constructive notice. However, plaintiff is precluded from offering this evidence because the witness was not disclosed until defendants' motion for summary judgment, made after defendants' demands for the names and addresses of such witnesses, a preliminary conference order requiring plaintiff to disclose any notice witnesses and Plaintiff's filing of her note of issue ( see Masucci-Matarazzo v Hoszowski, 291 AD2d 208; Robinson v New York City Hous. Auth., 183 AD2d 434). No explanation was offered for this failure to comply with disclosure obligations. Under these circumstances, the affidavit should not be considered ( see Matas v Clark Wilkins Indus., Inc., 61 AD3d 582) and without it, plaintiff fails to raise a triable issue of fact as to constructive notice. Concur.


Summaries of

Ravagnan v. One Ninety Realty Co.

Appellate Division of the Supreme Court of New York, First Department
Jul 21, 2009
64 A.D.3d 481 (N.Y. App. Div. 2009)

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.

Summary of this case from Hanan v. Bremen House Inc.

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.

Summary of this case from Hanan v. Bremen House Inc.

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.

Summary of this case from Hanan v. Bremen House Inc.

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.

Summary of this case from Hanan v. Bremen House Inc.
Case details for

Ravagnan v. One Ninety Realty Co.

Case Details

Full title:LYDA RAVAGNAN, Respondent, v. ONE NINETY REALTY COMPANY et al.…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: Jul 21, 2009

Citations

64 A.D.3d 481 (N.Y. App. Div. 2009)
2009 N.Y. Slip Op. 5908
883 N.Y.S.2d 490

Citing Cases

Hanan v. Bremen House Inc.

Defense counsel argues, in reply, that the Court should grant the motion for summary judgment dismissing the…

Hanan v. Bremen House Inc.

Defense counsel argues, in reply, that the Court should grant the motion for summary judgment dismissing the…