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VOLUME 10 August 2005 | ||||||
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AFFIDAVIT FROM PREVIOUSLY UNDISCLOSED WITNESS CANNOT BE CONSIDERED UPON A MOTION FOR SUMMARY JUDGMENT By Mayya S. Gotlib, Esq.
Paula Vereen was walking through Bravo supermarket in the Bronx, when several jars of mayonnaise, pickles and ketchup allegedly fell onto her back and shoulder knocking her to the ground and causing her to injure her arm. While on the ground, Ms. Vereen looked up and saw that the jars of products on the top shelves were ‘improperly stacked.’ Her lawsuit for personal injury based on the supermarket’s negligent stacking of the produce followed in one of the most pro-plaintiff venues in this country, Bronx, New York.
Of course, Ms. Vereen and her attorneys had a serious problem. In order to prove that the supermarket was negligent, they would need to show that the alleged dangerous condition, i.e. improperly stacked jars of food, was either created by the defendant’s employees (i.e. actual notice) or was present for such a period of time that it could or should have been discovered and remedied (i.e. ‘constructive notice’). Ms. Vereen was unable to state who created this alleged ‘dangerous condition’ or for how long it existed prior to the accident. Without proof of prior notice, there could be no valid claim for negligence against the supermarket. As such, we recommended to our client that at the conclusion of discovery, a motion for summary judgment seeking a dismissal of the case be filed.
New York rules of civil procedure require parties to a lawsuit to fully disclose any and all relevant information prior to certifying the matter ready for trial. The definition of ‘relevant and material’ information as it pertains to rules of discovery in civil cases is rather broad and New York Courts routinely grant parties’ demands for disclosure and discovery as long as the information and/or materials sought are not privileged. However, once the matter is certified ready for trial, no further discovery is permitted. Such certification takes place when plaintiff’s counsel files a Note of Issue and Certificate of Readiness, placing the case on the trial calendar. Any information not obtained by the parties prior to the certification is deemed waived and, conversely, any demanded but not disclosed evidence may be precluded at the time of trial. The Courts do not permit additional discovery after the filing of the Note of Issue, in the absence of ‘special circumstances’ excusing the parties’ failure to complete discovery and disclosure prior to the certification.
This rule requiring the completion of discovery prior to certification proved pivotal in the dismissal of the Vereen claim. Prior to the certification of Ms. Vereen’s suit, this office served three separate demands for information regarding any and all individuals who may be called as ‘notice’ witnesses at the time of trial. Each time, plaintiff’s counsel responded that there were ‘no witnesses’ to the incident, to the alleged condition or to the prior notice of such condition. Plaintiff’s counsel then certified the matter ready for trial. Following the certification, this office filed a motion seeking a dismissal of Ms. Vereen’s case. In opposition to the motion, for the first time during three years of litigation and several months after the matter was certified trial ready, plaintiff submitted an Affidavit from a previously undisclosed non-party witness. The Affidavit stated that the witness was present at the supermarket on the very day of plaintiff’s accident and remembered telling the manager that some items on the top shelves were ‘lopsided.’ The undersigned urged the court to disregard the Affidavit of the previously undisclosed witness. We argued that since the non-party witness was never disclosed prior to the certification of the case, her testimony at the time of trial would be precluded and as such, her Affidavit should be disregarded for purposes of summary judgment motion as well. The Court agreed with our position, holding that since the plaintiff had no other proof of notice and would not be able to prove her case without the testimony of this undisclosed witness, which would have been precluded at trial, the plaintiff did not have sufficient evidence to proceed with her suit against our client. While it took the Bronx County court nine months to decide this motion, the eventual dismissal of this bogus claim in the pro-plaintiff venue was well worth the wait. |
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