| Vailes v Nassau County Police Activity League, Inc., RooseveltUnit |
| 2010 NY Slip Op 03112 [72 AD3d 804] |
| April 13, 2010 |
| Appellate Division, Second Department |
| Tyshon Vailes, Appellants, v Nassau County PoliceActivity League, Inc., Roosevelt Unit, Respondent. |
—[*1] French & Casey, LLP, New York, N.Y. (Rosalyn Maldonado and Susan Romano ofcounsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Nassau County (Phelan, J.), entered April 22, 2009, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is denied.
We agree with the defendant that the Supreme Court providently exercised its discretion indeclining to consider the affidavit of the plaintiffs' purported expert, since that expert was notidentified by the plaintiffs until after the note of issue and certificate of readiness had been filedattesting to the completion of discovery (see Gerardi v Verizon N.Y., Inc., 66 AD3d 960, 961 [2009]).Nonetheless, even without considering that affidavit, in response to the defendant's prima facieshowing of its entitlement to judgment as a matter of law based upon its defense that the infantplaintiff assumed the risk of his injury (see Morgan v State of New York, 90 NY2d 471[1997]; see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]), the plaintiffsraised triable issues of fact as to whether the defendant unreasonably increased the risk of injuryto him (see Karr v Brant Lake Camp, 261 AD2d 342 [1999]; Mauner v Feinstein,213 AD2d 383 [1995]; see also Egan ex rel. Egan v Clark, 2005 WL 1415720, 2005 USDist LEXIS 45467 [SD NY 2005] [applying New York law]).
The defendant's remaining contentions are without merit. Mastro, J.P., Miller, Austin andRoman, JJ., concur.