| Kopeloff v Arctic Cat, Inc. |
| 2011 NY Slip Op 04007 [84 AD3d 890] |
| May 10, 2011 |
| Appellate Division, Second Department |
| Keith A. Kopeloff, Appellant, v Arctic Cat, Inc.,Respondent. |
—[*1] Charles X. Connick, PLLC, Mineola, N.Y. (Glenn P. McNamee and Garret P. Rooney ofcounsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiff appeals from an orderof the Supreme Court, Suffolk County (Spinner, J.), dated May 10, 2010, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
In 2004 the plaintiff allegedly was injured when the snowmobile he was driving turned overand threw him off. In 2006 the plaintiff commenced this action against the defendant, whichmanufactured the snowmobile, alleging that an overcentered sway bar arm caused his accident.The note of issue and certificate of readiness were filed on or about April 22, 2009. In August2009 the defendant moved for summary judgment dismissing the complaint. In opposition, theplaintiff submitted, inter alia, an affidavit by an expert whom he had not previously identified tothe defendant. The Supreme Court granted the defendant's motion for summary judgment.
The defendant established its prima facie entitlement to judgment as a matter of law bysubmitting evidence which demonstrated that the plaintiff's accident was not caused by anovercentered sway arm bar, and that the defendant was not otherwise liable to the plaintiff. Inopposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant bore anyliability for the accident (see CPLR 3212 [b]; see generally Alvarez v ProspectHosp., 68 NY2d 320 [1986]).
Contrary to the plaintiff's contention, the Supreme Court did not improvidently exercise itsdiscretion in rejecting as untimely the expert affidavit he submitted in opposition to the motionfor summary judgment (see CPLR 3101 [d]). The plaintiff did not provide any excuse forfailing to identify the expert in response to the plaintiff's discovery demands. Indeed, thedefendant was unaware of the expert until the defendant was served with the expert's affidavit inresponse to its summary judgment motion, even though the record discloses that the expert hadbeen retained by the plaintiff approximately 18 months earlier. Under such circumstances, theSupreme Court properly declined to consider the affidavit (see Vailes v Nassau County Police Activity League, Inc., RooseveltUnit, 72 AD3d 804, 805 [2010]; [*2]Yax v Development Team, Inc., 67AD3d 1003, 1004 [2009]; Gerardi vVerizon N.Y., Inc., 66 AD3d 960 [2009]; cf. Saldivar v I.J. White Corp., 46 AD3d 660, 661 [2007]; Hernandez-Vega v Zwanger-PesiriRadiology Group, 39 AD3d 710, 711 [2007]; cf. also Browne v Smith, 65 AD3d 996 [2009]; Howard v Kennedy, 60 AD3d 905,906 [2009]). In any event, even if the affidavit of the plaintiff's expert could have properly beenconsidered, the result would not have been different, inasmuch as the Supreme Court correctlyconcluded that it was speculative, conclusory, and partially based on evidence which is not in therecord (see Micciola v Sacchi, 36AD3d 869, 871 [2007]; Guarino v La Shellda Maintenance Corp., 252 AD2d 514,515 [1998]; see also Wartski v C.W.Post Campus of Long Is. Univ., 63 AD3d 916, 917 [2009]).
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court properly granted the defendant's motion for summaryjudgment dismissing the complaint. Rivera, J.P., Skelos, Sgroi and Miller, JJ., concur.