Wolodkowicz v Seewell Corp., 2009 NY Slip Op 02776 (App. Div., 2nd, 2009)

At trial, over the plaintiff’s objection, the defendant was
permitted to present testimony of a previously undisclosed witness
regarding prior incident reports at the Dunkin Donuts, as well as the
store’s structure and outdoor lighting conditions. The plaintiff
previously had demanded disclosure of, inter alia, witnesses to “[t]he
nature and duration of any alleged condition which allegedly caused”
the plaintiff’s accident, and an April 4, 2007, preliminary conference
order required a response to her discovery demands within 30 days. In
addition, again over the plaintiff’s objection, the court permitted the
defendant to present photographs of the location of the accident that
it had failed to exchange with the plaintiff during discovery.

The jury determined that the
defendant was not negligent. Contrary to the plaintiff’s contention,
the verdict was not contrary to the weight of the evidence (see Matthias v Mary Immaculate Hosp., 274 AD2d 559).

However, the trial court erred in allowing an undisclosed witness to testify for the defendant (see Kavanaugh v Kuchner, 243 AD2d 445, 446), and a new trial is warranted under the circumstances (id.; Skowronski v F & J Meat Packers, 210 AD2d 392, 393; Carvache v New York City Tr. Auth., 175
AD2d 41, 42). We note that “there is no reason to preclude the
witness’s testimony at the new trial as the [plaintiff] can no longer
claim either surprise or lack of opportunity to prepare a responsive
defense” (Kavanaugh v Kuchner, 243 AD2d at 446).

The admission into evidence of the photographs marked Exhibits B
through F also was error. Defense counsel took the photographs during
the lunch recess immediately following the plaintiff’s direct trial
testimony and did not provide copies to the plaintiff, thereby
depriving her of the opportunity to counter them by taking her own
photographs. Accordingly, a new trial is warranted for this reason as
well (see Dugan v Dieber, 32 AD2d 815). The plaintiff’s
contention that the admission of the defendant’s photographs marked
Exhibits G through I was improper is unpreserved for appellate review
as her objection to the admission of these exhibits was withdrawn prior
to summation

The bold is mine.

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