Summary
This Appellate Division, First Department decision reviews a Supreme Court order granting summary judgment in favor of a defendant in a premises liability action brought by a police investigator who fell from a building ladder. The court modified the lower court's order to deny the defendant's motion, finding that the plaintiff raised triable issues of fact regarding whether the defendant violated specific New York City Fire Code provisions and failed to maintain the ladder safely. Additionally, the court upheld the denial of the plaintiff's cross-motion to strike the defendant's answer, ruling that CPLR 3212(b) permits consideration of an expert affidavit even if the expert was not previously disclosed.
Topics
Practice areas
Questions Presented
- Whether the summary‑judgment dismissal of the plaintiff's General Municipal Law §205‑e claim was proper given alleged triable issues of fact regarding fire‑code violations.
- Whether CPLR 3212(b) authorizes consideration of an expert affidavit on a summary‑judgment motion when the expert was not previously disclosed.
Holdings
- The appellate division reversed the summary‑judgment dismissal, finding that the plaintiff raised triable issues of fact as to whether the defendant violated the New York City Fire Code and that those issues preclude summary judgment.
- CPLR 3212(b) expressly authorizes consideration of an expert affidavit on a summary‑judgment motion even though the expert was not previously disclosed.
Key quotations
“The court providently denied plaintiff's cross‑motion, as CPLR 3212(b) expressly authorizes consideration of an expert affidavit on a summary judgment motion even though the expert was not previously disclosed pursuant to an expert exchange demand.”
Factual background
Plaintiff, a police investigator, fell from a ladder that was an extension of a fire‑escape system on the back of the defendant's building. The ladder had a bent metal step that the defendant knew about. Plaintiff alleged that the condition violated New York City Fire Code provisions and that the violation caused her injury.
Procedural history
The Supreme Court, Bronx County entered an order granting defendant's summary‑judgment motion on the plaintiff's General Municipal Law §205‑e claim and denying the plaintiff's cross‑motion to strike the answer. The Appellate Division reversed the summary‑judgment dismissal, holding that triable issues of fact existed and that CPLR 3212(b) permits consideration of an expert affidavit despite lack of prior disclosure.