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

736
CA 14-02183
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.


KELSEY D. COVELL, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

SAMANTHA M. SLOCUM, DEFENDANT-RESPONDENT.


CELLINO & BARNES, P.C., BUFFALO (ELLEN B. STURM OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

LAW OFFICE OF DANIEL R. ARCHILLA, BUFFALO (JOAN M. RICHTER OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Niagara County (Frank Caruso, J.), entered March 11, 2014.   The
order and judgment granted the motion of defendant for summary
judgment dismissing the complaint.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously reversed on the law without costs, the motion is
denied, and the complaint is reinstated.

     Memorandum: Plaintiff commenced this action to recover damages
for injuries she allegedly sustained when she was struck by a vehicle
operated by defendant on the street in front of plaintiff’s house.
Supreme Court erred in granting defendant’s motion for summary
judgment dismissing the complaint.

     Even assuming, arguendo, that defendant met her initial burden on
the motion, we conclude that plaintiff’s opposing papers demonstrated
the existence of a triable issue of fact requiring denial of
defendant’s motion. Specifically, plaintiff submitted the affidavit
of a witness who averred that, immediately after the accident,
defendant essentially stated that she had not seen plaintiff prior to
the collision. We reject defendant’s contention that we should
decline to consider that witness’s affidavit because plaintiff failed
to disclose the witness’s identity and/or defendant’s alleged
statements in responding to defendant’s discovery demands. Although
defendant’s “admissions” should have been disclosed during discovery,
“there is no indication that the failure to do so was willful or
contumacious” and, therefore, the affidavit “may properly be
considered in opposition to defendant[’s] motion” (Schaaf v Pork Chop,
Inc., 24 AD3d 1277, 1278). Nevertheless, in light of plaintiff’s
failure to disclose, we further conclude that, upon appropriate motion
from defendant, the court should afford defendant additional rights of
                                 -2-                           736
                                                         CA 14-02183

discovery pursuant to 22 NYCRR 202.21 (d) (see generally Gendusa v Yu
Lin Chen, 71 AD3d 1085, 1086; Schaaf, 24 AD3d at 1278).




Entered:   July 10, 2015                       Frances E. Cafarell
                                               Clerk of the Court
