Practice point: Defendant did not meet its initial burden of a prima facie showing that it lacked notice of the alleged hazard, since the park supervisor did not testify as to the last time the restroom had been checked or cleaned. In addition, he had no personal knowledge of the restroom’s condition at the time of the accident or during the hours before.
Students should note that the failure to disclose witness affidavits prepared prior to the action's commencement was law office failure, and that plaintiff referred to both witnesses in the General Municipal Law § 50-h examination. Therefore, the testimony will not be precluded, as long as defendant has the chance to depose the witnesses before trial.
The case is Cruz v. City of New York , NY Dept. 2011
Tomorrow’s issue is evidence.
