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Undisclosed witness affidavit rejected; Court grants defendant's motion for summary judgment based upon proof of its reasonable cleaning routine

Monterae Boglin v. New York City Housing Authority, Index No. 305089/2015 (Sup.Ct. Bronx Cty. 2019)

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A Bronx Supreme Court granted summary judgment dismissing a personal injury action where defendant demonstrated it neither created nor had actual or constructive notice of a dangerous condition in the form of a hanging metal light fixture cage in a staircase.

Plaintiff had alleged she was injured when she struck her head on the light fixture cage while visiting the defendant's building. She later testified she was there to visit her aunt, Tuwana.

After the close of discovery, defendant moved for summary judgment based upon the Complaint, deposition testimony, its Supervisor of Caretakers' Logbook, and affidavits of staff. The evidence, it contended, gave no indication that it had notice of any dangerous condition, but instead demonstrated that the building was cleaned, inspected and maintained on a daily basis pursuant to a janitorial schedule that was followed. Plaintiff opposed the motion, relying in part upon the affidavit of a Tuwana Boglin, a tenant in the building, who averred that she "noticed the metal cage cover the light fixture at the 5th floor landing of stairway 'A' was hanging and in a dangerous condition for about 2 or 3 days before plaintiff was struck by it".

The admissibility of this affidavit was questionable because plaintiff had never disclosed Tuwana Boglin as a witness while discovery was underway. The evidentiary value of such an affidavit thus suspect: without disclosure, an opposing party can never test what the witness has to say, by deposition or otherwise. Not disclosing the witness also prevents the opponent from possibly marshaling more of its own evidence to counter the new information.

The Court rejected the affidavit because submission of an affidavit by a "previously undisclosed notice witness, for the first time in opposition to defendant's motion for summary judgment is improper". The Court also agreed with defendant that the affidavit "can only be considered to have been tailored to avoid the consequences of plaintiff's earlier testimony and fails to raise a genuine issue of fact as to notice."

AGF&J partner Chris Christofides prepared and submitted the motion.