| Salcedo v Weng Qu Ju |
| 2013 NY Slip Op 03656 [106 AD3d 977] |
| May 22, 2013 |
| Appellate Division, Second Department |
| Milagros Salcedo, Appellant, v Weng Qu Ju et al.,Respondents, et al., Defendants. (And a Third-Party Action.) |
—[*1] Russo & Toner, LLP, New York, N.Y. (Fern Flomenhaft and Seth Guiterman ofcounsel), for respondents.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Queens County (Brathwaite Nelson, J.), dated December 7,2011, which granted the motion of the defendants Weng Qu Ju and Weng Hau Yin forsummary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is reversed, on the law and in the exercise of discretion, thefacts, and in the exercise of discretion, with costs, and the motion of the defendantsWeng Qu Ju and Weng Hau Yin for summary judgment dismissing the complaint insofaras asserted against them is denied.
The plaintiff commenced this action to recover damages for personal injuries aftershe allegedly tripped and fell on a sidewalk defect located on real property in Queens.The defendants Weng Qu Ju and Weng Hau Yin (hereinafter together the respondents)moved for summary judgment dismissing the complaint insofar as asserted against themand, in opposition, the plaintiff submitted, among other things, the affidavit of an expert.In the order appealed from, the Supreme Court granted the respondents' motion. Thecourt refused to consider the plaintiff's expert affidavit submitted in opposition to therespondents' motion for failure to comply with CPLR 3101 (d) (1) (i).
"[A] party's failure to disclose its experts pursuant to CPLR 3101 (d) (1) (i) prior tothe filing of a note of issue and certificate of readiness does not divest a court of thediscretion to consider an affirmation or affidavit submitted by that party's experts in thecontext of a timely motion for summary judgment" (Rivers v Birnbaum, 102 AD3d 26, 31 [2012]). Under thecircumstances of this case, it was an improvident exercise of discretion to refuse toconsider the affidavit of the plaintiff's expert submitted in opposition to the respondents'motion (see LeMaire vKuncham, 102 AD3d 659, 661 [2013]).
On the merits, although the respondents established, prima facie, their entitlement to[*2]judgment as a matter of law, the plaintiff'ssubmissions in opposition were sufficient to raise a triable issue of fact to whether thealleged sidewalk defect over which the plaintiff fell was located on the respondents'property (see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).
Accordingly, the Supreme Court should have denied the respondents' motion forsummary judgment dismissing the complaint insofar as asserted against them. Mastro,J.P., Leventhal, Sgroi and Miller, JJ., concur.