WEAVER v. DERONDE TIRE SUPPLY INC (2022)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this negligence action seeking damages for personal injuries he sustained while unloading tires from a truck in the course of his employment. Defendants DeRonde Tire Supply, Inc., DeRonde Casings, Ltd., and DeRonde Tire Company (collectively, defendants) appeal from that part of an order that denied their motion for summary judgment dismissing the complaint against them.

Contrary to defendants’ contention, we conclude that, although defendants met their initial burden on their motion by submitting evidence establishing as a matter of law that they were not negligent (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]), plaintiff raised a triable issue of fact in opposition in that regard (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980]).

With respect to plaintiff's opposition papers, defendants contend that Supreme Court erred in considering, inter alia, the affidavit and amended affidavit of a nonparty witness because, among other things, plaintiff's responding papers were untimely, and plaintiff failed to disclose the identity of the nonparty witness in question during the discovery process. Defendants failed to preserve for our review the latter contention, which is actually a contention that the court should have sanctioned plaintiff for a discovery violation by refusing to consider the affidavit and amended affidavit, inasmuch as a “request for the imposition of a penalty pursuant to CPLR 3126 is improperly made for the first time on appeal” (Rivera v. City of New York, 90 A.D.3d 735, 736, 934 N.Y.S.2d 456 [2d Dept. 2011]; see Matter of Rulinsky v. West, 107 A.D.3d 1507, 1510, 969 N.Y.S.2d 268 [4th Dept. 2013]; see also McClain v. Lockport Mem. Hosp., 236 A.D.2d 864, 865, 653 N.Y.S.2d 774 [4th Dept. 1997], lv denied 89 N.Y.2d 817 [1997]). Furthermore, contrary to defendants’ contention, the court did not abuse its discretion in considering plaintiff's responding papers despite the minimal delay in submitting them, inasmuch as courts have the “discretion to overlook late service where[, as here,] the [ ]moving party sustains no prejudice” (Matter of Jordan v. City of New York, 38 A.D.3d 336, 338, 833 N.Y.S.2d 8 [1st Dept. 2007]; see CPLR 2004, 2214 [c]; Bucklaew v. Walters, 75 A.D.3d 1140, 1141, 905 N.Y.S.2d 813 [4th Dept. 2010]). We have reviewed defendants’ remaining contentions concerning plaintiff's submissions, and we conclude that those contentions lack merit.

Contrary to defendants’ final contention, they failed to establish as a matter of law that the acts of one of plaintiff's coworkers constituted an intervening, superseding cause of plaintiff's injuries that relieved defendants of liability (see Kuligowski v. One Niagara, LLC, 177 A.D.3d 1266, 1267, 112 N.Y.S.3d 383 [4th Dept. 2019]; see generally Hain v. Jamison, 28 N.Y.3d 524, 529, 46 N.Y.S.3d 502, 68 N.E.3d 1233 [2016]).