        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

962
CA 15-00348
PRESENT: SMITH, J.P., CARNI, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


SCOTT WINTERMUTE, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

VANDEMARK CHEMICAL, INC., DEFENDANT-APPELLANT.


RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA LLC, BUFFALO (MELISSA L.
VINCTON OF COUNSEL), FOR DEFENDANT-APPELLANT.

BISOGNO & MEYERSON, LLP, BROOKLYN (PATRICK BISOGNO OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from a judgment of the Supreme Court, Niagara County
(Matthew J. Murphy, III, A.J.), entered May 9, 2014. The judgment
awarded plaintiff money damages upon a jury verdict.

     It is hereby ORDERED that the judgment so appealed from is
unanimously reversed on the law without costs, the posttrial motion is
granted, the verdict is set aside and a new trial is granted.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries he allegedly sustained when he slipped and fell inside a
building at defendant’s chemical plant. Following a trial, the jury
returned a verdict in favor of plaintiff, and Supreme Court denied
defendant’s posttrial motion seeking to set aside the verdict pursuant
to CPLR 4404 (a). We agree with defendant that the court abused its
discretion in refusing to allow defendant to present the testimony of
a witness who interviewed plaintiff concerning the facts and
circumstances of his fall (see generally Kaplan v Sparks [appeal No.
1], 221 AD2d 974, 974). That evidence was relevant to the critical
issue whether plaintiff slipped on snow or ice inside of defendant’s
building, or whether plaintiff tracked the snow into the building on
his boots. Moreover, inasmuch as plaintiff was in possession of the
written report generated as a result of the interview well before
trial, plaintiff demonstrated no prejudice from the untimely
disclosure of this witness (see O’Callaghan v Walsh, 211 AD2d 531,
531-532). We thus conclude that the court erred in denying
defendant’s posttrial motion to set aside the verdict and for a new
trial (see CPLR 4404 [a]).

     In light of our determination, we do not address defendant’s
remaining contentions.
Entered: December 31, 2015                      Frances E. Cafarell
                                                Clerk of the Court
