John Downes, Respondent, v. American Monument Co., Appellant, et al., Defendants. (And a Third-Party Action.)

John Downes, Respondent, v American Monument Co., Appellant, et al., Defendants. (And a Third-Party Action.) [724 NYS2d 610] [MAJORITY] —Order, Supreme Court, Bronx County (George Friedman, J.), entered March 11, 1999, which, in an action by a grave digger for personal injuries sustained when a gravestone installed by defendant-appellant fell on him, insofar as appealed from, denied appellant’s motion for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs. The motion court properly considered the affidavit of plaintiffs expert witness in opposition to summary judgment, notwithstanding plaintiffs 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 AD2d 95). Upon consideration of that affidavit, issues of fact exist as to whether the method appellant used to attach the gravestone to its base was negligent, and, if so, whether plaintiffs injuries were caused thereby. Concur — Rosenberger, J. P., Mazzarelli, Andrias, Buckley and Friedman, JJ.