As a threshold procedural issue, we find no legal impediment to examining the merits of defendant's motion for summary judgment. Contrary to Supreme Court's determination, the fact that defendant was precluded from presenting evidence at trial on liability did not affect its right to move for summary judgment. Generally, a defendant's preclusion from introducing evidence at trial does not automatically entitle a plaintiff to summary judgment (see Northway Eng'g v Felix Indus., 77 NY2d 332 [1991]; Rosario v Humphreys & Harding, 301 AD2d 406 [2003]). Indeed, a preclusion order does not relieve the plaintiff of the burden of proving its case (see Northway, 77 NY2d at 337; Murphy v Herbert Constr., Co., 297 AD2d 503 [2002]; Israel v Drei Corp., 5 AD2d 987 [1958]); nor does it preclude affirmative defenses (see e.g., Ramos v Shendell Realty Group, Inc., 8 AD3d 41 [2004] [affirmative defense of comparative negligence still a viable defense despite the preclusion order]; Mendez v Queens Plumbing Supply, Inc., 12 Misc 3d 1064 [Sup Ct, Bronx County 2006] [same]; see also Moskowitz v Garlock, 23 AD2d 943 [1965]). Therefore, a preclusion order preventing evidence at trial on liability is unlike the striking of an answer, which effectively resolves a claim against the nondisclosing defendant (see Rokina Opt. Co. v Camera King, 63 NY2d 728 [1984]).
Accordingly, summary judgment should be granted where the non-disclosing defendant [*4]can establish entitlement to such relief despite the preclusion order barring it from offering its own affirmative evidence as to liability. This Court's determination in Murphy v Herbert Constr. Co. (297 AD2d 503 [2002]) aptly illustrates the point. In Murphy, the plaintiff moved for summary judgment on liability pursuant to Labor Law § 241(6), and the defendant subcontractor cross-moved for summary judgment dismissal of the claims under Labor Law §§ 240(1) and 241(6). Supreme Court granted plaintiff summary judgment and denied defendant's cross motion in its entirety. This Court reversed and granted the non-disclosing defendant summary judgment despite the fact that the motion court had precluded it from presenting evidence at trial on liability. Specifically, this Court dismissed the Labor Law §§ 240(1) and 241(6) claims asserted against the subcontractor because the plaintiff's evidence failed to allege a key element of such claims (id. at 504).
Plaintiff's reasoning for distinguishing Murphy — adopted by the dissenters — is not persuasive. Plaintiff argues that Murphy is inapplicable, in that the plaintiff there was the movant, but failed to produce any evidence establishing a prima facie case, a fundamentally different procedural posture from that at issue here. Plaintiff contends that, since defendant has the burden of establishing a prima facie case on its motion for summary judgment through the tendering of evidence and it is barred from tendering such evidence because of the preclusion order, it cannot meet its burden.
The divergent posture of this case vis-à-vis Murphy changes nothing. What is significant is that in both cases the preclusion order did not bar the defendant from challenging the sufficiency of the plaintiff's evidence; the answer was not stricken and the preclusion did not extend beyond limiting the defendant's affirmative evidence at trial on liability. The application of the remedy of preclusion to a specific category of evidence, as applied against a defendant, should not be a device for precluding a defendant from challenging the sufficiency of the plaintiff's evidence. In fact, courts have consistently held that a defendant may establish its prima facie entitlement to judgment as a matter of law by relying upon the plaintiff's evidence, including the plaintiff's own deposition, which may negate liability (see e.g. Acheson v Shepard, 27 AD3d 596 [2006]; Wellington v Manmall, LLC, 70 AD3d 401 [2010]).
For example, in DeSantis v Lessing's, Inc. (46 AD3d 742 [2007]), the defendant established its prima facie entitlement to judgment as a matter of law by submitting the plaintiff's deposition testimony, in which she was unable to explain what caused her to trip and fall. Similarly, in Frank v Time Equities (292 AD2d 186 [2002]), this Court held that "[w]hile a defendant moving for summary judgment [in a slip-and-fall case] has the burden of demonstrating entitlement to dismissal as a matter of law, there is no need for a defendant to submit evidentiary materials . . . where the plaintiff failed to claim the existence of notice of the condition" (id. at 186). Thus, while Murphy arose in a different procedural context, its ruling underscores the basic rule applicable here: that a defendant can prevail at the summary judgment stage by challenging the sufficiency of the plaintiff's evidence.
Indeed, it cannot be seriously disputed that a preclusion order does not prevent a defendant from challenging a plaintiff's evidence at trial by moving for a directed verdict at the end of the plaintiff's case on the ground that the latter has failed to make a prima facie case. It is [*5]also beyond cavil that a motion for summary judgment is the procedural equivalent of a trial (see Crowley's Milk Co. v Klein, 24 AD2d 920 [1965]). In fact, CPLR 3212(b) implicitly draws an analogy between the motion for summary judgment and the motion for a directed verdict made at trial [FN1]. In each instance, the court is taking the case away from the fact finder by determining that there is nothing to try. Of course, the main difference is that on a summary judgment motion the judge is asked to decide the issue on papers alone while in a motion for a directed verdict, the judge has the advantage of hearing live testimony.
Significantly, we perceive no imperative policy consideration that militates against allowing by summary judgment motion what a defendant can do at trial. Contrary to the dissenters' assertions, such determination does not "perversely undermine the point of the order." On the contrary, while the purpose of a preclusion order is to make the demanding party whole (see Northway, 77 NY2d at 337), whatever disadvantage plaintiff sustained as a result of defendant's failure to provide the required discovery was overcome when Supreme Court effectively prohibited defendant from offering its own affirmative evidence at trial on liability. To further preclude defendant from making a motion for summary judgment to challenge plaintiff's evidence — as a defendant can do at trial — would give plaintiff more relief than is warranted (id.).
For the foregoing reasons, we are satisfied that the preclusion order does not constitute a procedural bar to this Court's proper disposition of defendant's motion for summary judgment on the merits. To be sure, as plaintiff correctly points out, we are mindful of the fact that defendant, by its own failure to comply with the conditional preclusion order, should be barred from offering its own affirmative evidence as to liability, either at trial or on the motion, regardless of the order's reference to "at trial." The result, otherwise, would perversely undermine the point of the order by allowing defendant to benefit from the short cut of summary judgment by use of the same evidence that otherwise would have been barred at trial. Hence, for present purposes, all of defendant's affirmative evidence is precluded.[FN2]
Since the affidavit of the plaintiff's nanny was insufficient to raise a triable issue of fact as to whether the ramp upon which the she allegedly wheeled the stroller was negligently designed, installed, or maintained, we need not address Starbucks' contention that the Supreme Court, in denying its cross motion for summary judgment, erred in considering that affidavit because the nanny's identity was not properly disclosed by the plaintiffs in their responses to the defendants' demands for disclosure or a preliminary conference order (see Williams v ATA Hous. Corp., 19 AD3d 406, 407). However, the affidavit of the plaintiffs' expert, which the plaintiffs also submitted in opposition to the cross motion, should not have been considered by the Supreme Court, since that expert witness was not identified by the plaintiffs until after the note of issue and certificate of readiness were filed, attesting to the completion of discovery, and the plaintiffs offered no valid excuse for the delay (see Gerardi v Verizon N.Y., Inc., 66 AD3d 960, 961; Wartski v C.W. Post Campus of Long Is. Univ., 63 AD3d 916, 917; Ortega v New York City Tr. Auth., 262 AD2d 470). Accordingly, the Supreme Court should have granted Starbucks' cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.
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