New York Supreme and/or Appellate Courts Appellate Division, First Department
March 21, 2013
RIVERBAY CO-OP, ET AL.,
Collazo v Riverbay Co-op
Decided on March 21, 2013
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Mazzarelli, Saxe, Moskowitz, Manzanet-Daniels, JJ.
Judgment, Supreme Court, Bronx County (Patricia A. Williams, J.), entered January 31, 2011, in plaintiff's favor, unanimously reversed, on the law, without costs, the judgment vacated, and the matter remanded for a new trial.
As plaintiff's son had not previously been identified as a notice witness, and defendants had no reason to anticipate that he would testify as to notice, the trial court erred in allowing him to testify that he had observed the alleged defective condition one month before his mother's accident (see Tavarez v DeLange, 190 AD2d 568 [1st Dept 1993]). The issuance of a missing witness charge as to a purported employee of defendants whose existence was not proven was also error (see e.g. Germe v City of New York, 211 AD2d 480 [1st Dept 1995]). These errors were compounded by the preclusion of the testimony of two defense witnesses and the limitation of a third witness's testimony.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 21, 2013
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