On March 23, 2004, the plaintiff allegedly fell on the sidewalk adjacent to 1111-1115 Hylan Boulevard, in front of two buildings owned respectively by defendants Denise DeMarzo and Delphine Group, LLC (Buono Bakery, Inc.) and defendant Hoon Sup Kim (Carvel). In August, 2004, the plaintiff commenced this action, and issue was joined by service of an answer by defendants. After the completion of discovery, defendants DeMarzo/Delphine Group, LLC moved for summary judgment dismissing the complaint. Prior to the return date of the motion, DeMarzo/Delphine Group settled this matter with the plaintiff. Accordingly, their motion for summary judgment has been marked withdrawn. Defendant Kim now moves for summary judgment dismissing the complaint against him. The plaintiff cross-moves to

preclude the consideration of Kim's experts' affidavits on this motion for failure to comply with a demand for expert witness information pursuant to CPLR 3101(d)(1)(i).

Addressing the cross-motion to preclude first, CPLR 3101(d)(1)(i) does not require a

party to respond to a demand for expert witness information at any specific time. Unless there is evidence of an intentional or willful failure to disclose and a showing of prejudice to the opposing party, preclusion is not warranted (see, Johnson v. Greenberg, 35 AD3d 380 [2d Dept. 2006]; Young v. Long Island University, 297 AD2d 320 [2d Dept. 2002]). In the instant case, because the plaintiff has failed to demonstrate an intentional or willful failure to disclose or prejudice, the cross-motion to preclude is denied and the court will consider the defendant's experts' affidavits (see, Simpson v. Tenore and Guglielmo, 287 AD2d 613 [2d Dept. 2001]; Blade v. Town of North Hempstead, 277 AD2d 268 [2d Dept. 2000]).

Turning to the motion to dismiss, it is well established that "liability for a dangerous condition on real property must be predicated upon occupancy, ownership, control, or special use of the premises" (Cuce v. Bell Atl. Corp., 299 AD2d 387, 388 [2d Dept. 2002]). Defendant Kim established a prima facie case that he owed no duty to the plaintiff. At her [*2]deposition, the plaintiff indicated on a photograph the exact location of her fall. Defendant Kim submitted an affidavit from a licensed surveyor that this location was in front of 1115 Hylan Boulevard, the settling tortfeasors' property, not 1111 Hylan Boulevard, Kim's property. Additionally, Kim submitted the transcript of his deposition testimony at which he testified that the owners' of 1111 Hylan Boulevard had installed a new sidewalk a few years before, which caused a slight elevation between their sidewalk and his sidewalk. Defendant Kim further testified that he had not created any defect or hazardous condition on the sidewalk in front of either address.

In opposition to the motion, the plaintiff failed to raise a triable issue of fact (see, Rodgers v. City of New York, 34 AD3d 555 [2d Dept. 2006]; Meyer v. Tyner, 273 AD2d 364 [2d Dept. 2000]). The plaintiff did not submit any evidence to rebut defendant Kim's establishment that the location of the fall was not in front of his property and that he did not create the alleged elevation defect.

Accordingly, it is

ORDERED that the defendant Hoop Sup Kim's motion for summary judgment dismissing the complaint is granted and the complaint is dismissed as against him; and it is further

ORDERED that the plaintiff's motion to preclude the consideration of the defendant's experts' affidavits on this motion is denied.

This is the Decision and Order of the Court.

E N T E R,

Dated: April 19, 2007

J.S.C.