Opinion
May 7, 1992
Appeal from the Supreme Court, Bronx County (Howard R. Silver, J.).
The IAS court did not abuse its discretion in precluding the testimony of the plaintiff's notice witnesses. At the preliminary conference, plaintiff stated she had no notice witnesses, and it was not until more than a year after a preliminary conference order directing plaintiff to disclose the identities of her witnesses, after she had filed a note of issue, and then only in opposition to a motion for summary judgment, did plaintiff finally disclose that her two sons were her notice witnesses (see, Higdon v. County of Nassau, 121 A.D.2d 366; Zayas v. Morales, 45 A.D.2d 610; Roman v. Shik, 114 Misc.2d 862). Preclusion of plaintiff's belatedly identified notice witnesses necessarily entailed summary judgment in defendant's favor, since, as the IAS court noted, without the testimony of such witnesses plaintiff could not make a prima facie showing that defendant either created the alleged defective condition that caused her to fall or had actual or constructive notice of the condition for such a reasonable period of time that, in the exercise of reasonable care, it should have discovered and corrected it (Trujillo v. Riverbay Corp., 153 A.D.2d 793; Anderson v. Klein's Foods, 139 A.D.2d 904, affd 73 N.Y.2d 835, rearg denied 73 N.Y.2d 918). We have reviewed the plaintiff's remaining claims and find them to be without merit.
Concur — Sullivan, J.P., Rosenberger, Wallach, Ross and Kassal, JJ.