Silence can be Deadly – Failure to Disclose Witness is Fatal to Plaintiff’s Claim (NY)

The Second Department recently upheld a pretrial win for Muintir, LLC over claims launched by a customer who tripped on Muintir’s property in Gallway v. Muintir, LLC.  In affirming, the Court found that there was no showing that Mutinir had actual or constructive notice of the defective condition that allegedly caused plaintiff’s fall.

On October 28, 2011, Gallway, was dining at Dalton Sea Side Grill, a Tenant of Muintir, with her granddaughter.  Upon exiting the restaurant, plaintiff allegedly tripped and fell on a defect in the sidewalk abutting the premises, which was owned by Muintir, LLC.  Plaintiff describes the defect as a crack radiating from a hole 1.5 inches deep with a diameter larger than a silver dollar. In her deposition she stated that she had visited the restaurant ten times in the year preceding her accident where she had never observed the alleged sidewalk defect.

Muintir moved for summary judgment claiming they lacked actual or constructive notice of the defect in the sidewalk.  In support of the motion, included was the deposition of an employee of the restaurant who testified that he did not observe the defect in the sidewalk.  In opposition, Gallway submitted an affidavit of her granddaughter, a witness not previously disclosed, who stated she had seen the defect on a prior occasion.  The Court refused to consider the granddaughters affidavit, finding for Muintir.

The Appellate Court held that the motion court properly refused to consider the affidavit of the Plaintiff’s granddaughter to establish that Defendants had notice of the sidewalk defect that caused her grandmother to fall.  Plaintiff failed to disclose her as a notice witness during discovery and did not offer a valid excuse for that failure.  Without the granddaughter’s affidavit, the Appellate court found that plaintiff failed to establish the claimed defect was present for a sufficient length of time to give the Defendant constructive notice of its existence.

The Court’s ruling demonstrates that plaintiffs must take discovery seriously, including witness disclosure, lest they be precluded from relying upon such undisclosed information at trial.  Thanks to Patrick Burns for his contribution to this post.  Please email Brian Gibbons with any questions.