| Crawford v Village of Millbrook |
| 2012 NY Slip Op 03128 [94 AD3d 1036] |
| April 24, 2012 |
| Appellate Division, Second Department |
| Dennis V. Crawford, Appellant, v Village of Millbrook,Respondent. |
—[*1] Gambeski & Frum, Elmsford, N.Y. (Donald L. Frum of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment ofthe Supreme Court, Dutchess County (Pagones, J.), dated January 18, 2011, which, after anonjury trial, is in favor of the defendant and against him dismissing the complaint withprejudice.
Ordered that the judgment is affirmed, with costs.
On October 6, 2004, the plaintiff fell from his motorcycle while driving west on a curvedsection of New York State Route 343 (hereinafter Route 343), in the Village of Millbrook. Route343 is maintained by the State of New York, while the intersecting Church Street is maintainedby the Village. A police officer filed a report in which he concluded that the plaintiff's accidentoccurred due to sun glare and the plaintiff's inexperience with driving a motorcycle. The plaintiffconceded that he only had a permit to drive the motorcycle, and did not yet have a license. Theplaintiff had no memory of the accident.
Just before the trial began, the plaintiff moved to admit the testimony of a former member ofthe Village's Board of Trustees, who had not been identified as a witness until the eve of trial.The Supreme Court denied the motion.
At trial, it was established that gravel was found on the road where the accident occurred.The plaintiff introduced the testimony of an asphalt paving expert, who testified at trial that theVillage negligently undertook the blacktopping of Church Street in the month before theaccident. The only witness to the accident, who had been driving behind the plaintiff when itoccurred, testified that the gravel in question had been in the same location for 15 years, althoughthere was more gravel than usual on the day of the accident.
After the nonjury trial, the Supreme Court found in favor of the defendant and against theplaintiff, noting that the plaintiff had failed to prove that any act or omission on the part of theVillage was a proximate cause of his injuries. In a judgment dated January 18, 2011, the SupremeCourt dismissed the complaint with prejudice. The plaintiff appeals. We affirm.[*2]
The Supreme Court providently exercised its discretion indenying the plaintiff's motion on the eve of trial to admit the testimony of a newly identifiedwitness. The plaintiff failed to disclose this witness until six years after commencing the action,and failed to provide a reasonable explanation for his delay in disclosing the identity of thewitness (see CPLR 3101; Spectrum Sys. Intl. Corp. v Chemical Bank, 78 NY2d371, 376 [1991]; Mayorga v Jocarl &Ron Co., 41 AD3d 132, 134 [2007]; Ortega v New York City Tr. Auth., 262AD2d 470 [1999]).
With respect to the ultimate determination of the Supreme Court in favor of the defendant,"[i]n reviewing a determination made after a nonjury trial, this Court's power is as broad as thatof the trial court, and it may render the judgment it finds warranted by the facts, taking intoaccount that in a close case the trial court had the advantage of seeing and hearing the witnesses"(BRK Props., Inc. v Wagner ZivPlumbing & Heating Corp., 89 AD3d 883, 884 [2011]; see Northern WestchesterProfessional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; WBP Cent. Assoc., LLC v DeCola, 91AD3d 861 [2012]). "The liability of a municipality begins and ends with the fulfillment ofits duty to construct and maintain its highways in a reasonably safe condition. No liability willattach unless the alleged negligence of the municipality in maintaining its roads is a proximatecause of the accident" (Levi vKratovac, 35 AD3d 548, 549 [2006] [citations omitted]). Here, the Supreme Courtproperly found that the evidence adduced at trial did not establish that the blacktopping projectperformed by the defendant on Church Street was a proximate cause of the plaintiff's accident onRoute 343. The Supreme Court, therefore, properly found in favor of the defendant anddismissed the complaint with prejudice.
In view of the foregoing, we do not address the plaintiff's remaining contentions. Florio, J.P.,Lott, Sgroi and Miller, JJ., concur.