| Santiago v C&S Wholesale Grocers Inc. |
| 2011 NY Slip Op 03047 [83 AD3d 814] |
| April 12, 2011 |
| Appellate Division, Second Department |
| Richard Santiago, Appellant, v C&S Wholesale GrocersIncorporated, Defendant/Third-Party Plaintiff-Respondent. North Jersey Trailer and TruckService, Inc., Third-Party Defendant. |
—[*1] Morrison Mahoney, LLP, New York, N.Y., for defendant/ third-party plaintiff respondent. James R. Pieret, Garden City, N.Y. (Michael J. Colleary of counsel), for third-partydefendant.
In an action to recover damages for personal injuries, the plaintiff appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Kings County (Rothenberg, J.), datedJanuary 15, 2010, as granted the defendant's cross motion for summary judgment dismissing thecomplaint.
Ordered that the order is affirmed insofar as appealed from, with costs to thedefendant/third-party plaintiff-respondent.
The defendant C&S Wholesale Grocers Incorporated (hereinafter C&S) made a prima facieshowing of its entitlement to judgment as a matter of law dismissing the complaint. It establishedthat it neither created nor had actual or constructive notice of an allegedly defective trailer doorstrap (see Fontana v R.H.C. Dev.,LLC, 69 AD3d 561, 562 [2010]; DeCarlo v Village of Dobbs Ferry, 36 AD3d 749, 750 [2007]; Levinstim v Parker, 27 AD3d 698,699 [2006]). In opposition, the plaintiff failed to raise a triable issue of fact.
Furthermore, the Supreme Court did not improvidently exercise its discretion in refusing toconsider the plaintiff's expert's affidavit, since the identity of the expert was not timely disclosedby the plaintiff and the plaintiff offered no excuse for his delay in identifying his expert(see CPLR 3101 [d] [1]; Gerardiv Verizon N.Y., Inc., 66 AD3d 960, 961 [2009]; Wartski v C.W. Post Campus of Long Is. Univ., 63 AD3d 916, 917[2009]). In any event, even if the plaintiff's expert affidavit could have properly been considered,the result would not have been different (see Gerardi v Verizon N.Y., Inc., 66 AD3d at961; Wartski v C.W. Post Campus of Long Is. Univ., 63 AD3d at 917).[*2]
Accordingly, the Supreme Court properly granted C&S'scross motion for summary judgment dismissing the complaint. Rivera, J.P., Chambers, Hall andLott, JJ., concur.