JORDAN v. EUREKA CHRISTIAN FELLOWSHIP INC (2025)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Carolyn E. Wade, J.), dated June 26, 2024.  The order denied the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action against the defendants to recover damages for personal injuries that he allegedly sustained on June 22, 2019.  The plaintiff alleged that he was injured while attending an outdoor event on property owned by the defendants when a gust of wind caused a tent to fall on him.  In an order dated June 26, 2024, the Supreme Court denied the defendants’ motion for summary judgment dismissing the complaint.  The defendants appeal.

“A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident” (Boulos v. Lerner–Harrington, 124 A.D.3d 709, 709, 2 N.Y.S.3d 526).  As the plaintiff correctly contends, the affidavits of two notice witnesses who had not previously been disclosed were not admissible (see Gallo v. Health Port, Inc., 62 A.D.3d 943, 945, 881 N.Y.S.2d 108;  Shvartsberg v. City of New York, 19 A.D.3d 578, 579, 798 N.Y.S.2d 85;  Singer v. Waldbaums Bay Terrace, 9 A.D.3d 404, 405, 779 N.Y.S.2d 361).  Moreover, even if these affidavits were considered, the defendants’ submissions failed to establish, prima facie, that no dangerous condition existed with respect to the tent or that the defendants neither created a dangerous condition nor had actual or constructive notice of its existence (see Rhoden v. 515 Rest., LLC, 237 A.D.3d 1233, 234 N.Y.S.3d 209;  Saunders v. Nostrand 1543, LLC, 230 A.D.3d 1261, 1263, 216 N.Y.S.3d 742).

Since the defendants failed to meet their initial burden as the movants, it is not necessary to review the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

In light of our determination, it is not necessary to address the issue of whether the doctrine of res ipsa loquitur applies to this case (see Latorres v. Delta Air Lines, Inc., 208 A.D.3d 770, 771, 172 N.Y.S.3d 645).

Accordingly, the Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint.

BARROS, J.P., CHAMBERS, WARHIT and GOLIA, JJ., concur.