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DOWNES v. AMERICAN MONUMENT CO.

283 A.D.2d 256 (2001)

724 N.Y.S.2d 610

JOHN DOWNES, Respondent, v. AMERICAN MONUMENT CO., Appellant, et al., Defendants. (And a Third-Party Action.)

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided May 15, 2001.

The motion court properly considered the affidavit of plaintiff's expert witness in opposition to summary judgment, notwithstanding plaintiff's failure to disclose the expert's identity previously pursuant to CPLR 3101 (d) (1) (i), there being no showing of willfulness in or prejudice caused by the failure to disclose earlier (see, McDermott v Alvey, Inc., 198 A.D.2d 95). Upon consideration of that affidavit, issues of fact exist...

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