| King v Gregruss Mgt. Corp. |
| 2008 NY Slip Op 10131 [57 AD3d 851] |
| December 23, 2008 |
| Appellate Division, Second Department |
| Moses King, Respondent, v Gregruss Management Corporationet al., Defendants, and William Jones & Son et al., Appellants. |
—[*1] Ahmuty, Demers & McManus, Albertson, N.Y. (Brendan T. Fitzpatrick of counsel), for appellantsKaskam Chemicals, Inc., doing business as United Specialties of America, and Matschel of Flagler,Inc. Monaco & Monaco, LLP, Brooklyn, N.Y. (Frank A. Delle Donne of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant William Jones & Son appeals,as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (R. Doyle, J.),dated June 26, 2007, as denied its motion for summary judgment dismissing the complaint insofar asasserted against it and its cross motion to preclude the plaintiff's expert from offering testimony orevidence at any stage of the action, and the defendants Kaskam Chemicals, Inc., doing business asUnited Specialities of America, and Matschel of Flagler, Inc., separately appeal, as limited by theirbrief, from so much of the same order as denied their separate motion for summary judgment dismissingthe complaint insofar as asserted against them.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costspayable to the appellants appearing separately and filing separate briefs, the cross motion of thedefendant William Jones & Son to preclude the plaintiff's expert from offering testimony or evidence atany stage of the action is granted, and the motion of that defendant and the separate [*2]motion of the defendants Kaskam Chemicals, Inc., doing business asUnited Specialities of America, and Matschel of Flagler, Inc., for summary judgment dismissing thecomplaint insofar as asserted against each of them are granted.
The plaintiff was injured when a steel drum containing windshield washer fluid exploded while hewas cutting the drum open with an electric saw. The plaintiff retained an expert to inspect the drum, andthe expert determined from markings on the drum that the drum and the fluid in the drum weremanufactured by Sun Belt Chemicals, a name under which the defendant Matschel of Flagler, Inc.(hereinafter Matschel), conducted business. The expert also determined from the markings that thedrum had been reconditioned by the defendant William Jones & Son (hereinafter Jones). The plaintiffcommenced the instant action against Matschel and Jones, among others, alleging that the drum waseither negligently manufactured or negligently reconditioned. Specifically, the plaintiff alleged the drumdid not comply with standards promulgated by the federal Occupational Safety and HealthAdministration, was not fit for its intended use, was inherently hazardous, and did not contain adequatewarning labels. Matschel and Jones denied these allegations and, in essence, alleged that the accidentwas due solely to the plaintiff's negligence in using an electric saw to cut the drum without first removingthe sealed top of the drum.
After the plaintiff filed a note of issue, Jones moved, and Matschel, together with the defendantKaskam Chemicals, Inc., doing business as United Specialities of America (hereinafter collectively thedefendants), separately moved, for summary judgment dismissing the complaint insofar as assertedagainst each of them, asserting, inter alia, that the drum in question was not one manufactured orreconditioned by them. In opposition, the plaintiff submitted the report of his expert G.J. Raymus, whoexamined the drum in 1999 and, via his interpretation of the markings, identified the defendants as themanufacturer and reconditioner of the drum, thereby raising what, under most circumstances, would bea triable issue of fact with respect to that issue.
Jones, however, also cross-moved to preclude Raymus from testifying or adducing evidence at anystage of the action, based on what it claims were the plaintiff's insufficient responses to its repeateddemands for the identification of experts—none of which indicated that Raymus was the plaintiff'sexpert or that he had inspected the drum in 1999. Additionally, the defendants asserted, in their varioussubmissions, that the plaintiff's actions in destroying the drum after Raymus's inspection prevented themfrom inspecting the drum to question the validity of Raymus's interpretation of the markings on the drumand perform other analysis thereof, thus warranting an award of summary judgment dismissing thecomplaint by virtue of the plaintiff's spoliation of the drum—the critical item of evidence in thecase. The Supreme Court denied the defendants' respective summary judgment motions and Jones'scross motion to preclude Raymus from testifying at any stage of the action. We reverse.
The Supreme Court erred in denying Jones's cross motion for preclusion. Raymus's expert affidavitshould have been rejected since the plaintiff did not identify him in pretrial disclosure between 1996 and2006, and the defendants were unaware of Raymus until they were served with his affidavit in responseto the summary judgment motions, made after the plaintiff filed a note of issue and certificate ofreadiness (see Construction by Singletree,Inc. v Lowe, 55 AD3d 861 [2008]). In fact, the inspection of the drum by Raymus and itssubsequent disposal appear to have been accomplished prior to the commencement of the action. Wehave repeatedly held that, under such circumstances, preclusion is warranted as well (see DeLeon v State of New York, 22AD3d 786 [2005]; Safrin v DSTRussian & Turkish Bath, Inc., 16 AD3d 656 [2005]; Dawson v Cafiero, 292 AD2d488 [2002]).[*3]
Since the plaintiff is not capable of rebutting the defendants'denial of manufacture or reconditioning of the drum in question without Raymus's expert testimony,upon the preclusion of Raymus's affidavit, there is nothing remaining of the plaintiff's opposition otherthan conjecture or surmise. Thus, the plaintiff's opposition is insufficient to defeat the respective motionsfor summary judgement (see Healey v Firestone Tire & Rubber Co., 87 NY2d 596 [1996]; Abulhasan v Uniroyal-Goodrich Tire Co.,14 AD3d 900 [2005]). Furthermore, without expert testimony, the plaintiff will be unable tosustain his burden of proving his case under any of the enumerated causes of action. Under suchcircumstances, summary judgment dismissing the complaint insofar as asserted against the defendants isappropriate (see Bickford v St. FrancisHosp., 19 AD3d 344 [2005]). Mastro, J.P., Lifson and Eng, JJ., concur. Carni, J., separatelyconcurs on constraint of this Court's decision and order in Construction by Singletree, Inc. v Lowe (55 AD3d 861 [2008]).