DOWNES v. AMERICAN MONUMENT CO

The motion court properly considered the affidavit of plaintiff's expert witness in opposition to summary judgment, notwithstanding plaintiff's failure to disclose the expert's identity previously pursuant to CPLR 3101(d)(1)(I), there being no showing of willfulness in or prejudice caused by the failure to disclose earlier (see, McDermott v. Alvey, Inc., 198 A.D.2d 95). Upon consideration of that affidavit, issues of fact exist as to whether the method appellant used to attach the gravestone to its base was negligent, and, if so, whether plaintiff's injuries were caused thereby.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.