A trial court should not have rejected a key witness in a wrongful death case brought after a man fell over a golf course’s sprinkler valve, a state appeals court ruled Wednesday.
The Appellate Division, Second Department, reversed summary judgment in MacIsaac v. Nassau County, 6575/13, ruling that Patricia MacIsaac, the administer of husband John MacIsaac’s estate, had raised a triable issue of fact as to whether a sprinkler valve in a grass-covered hole “was concealed or unreasonably increased the risks inherent in the golf course.”
The underlying suit centered on John MacIsaac’s trip and fall in 2012 as he walked from the 12th green to the 13th tee box on a course at Nassau County’s Eisenhower Park.
Justices William Mastro, Mark Dillon, Sheri Roman and Valerie Brathwaite Nelson found that Patricia MacIsaac’s claims should not have been barred by the doctrine of primary assumption of risk.
The panel wrote that, in regard to MacIsaac’s opposition to the assumption of risk, Nassau County Supreme Court Justice Denise Sher had erred in rejecting an affidavit and photographic evidence from witness John Flower.
Flower merely authenticated certain photographs, most of which had been submitted by the decedent earlier, the panel found, and consequently Sher “should not have rejected Flower’s affidavit and the attendant photographs on the ground that the plaintiff had failed to identify Flower as a notice witness prior to the filing of the note of issue.”
Pontisakos & Brandman, a firm in Garden City, represented Patricia MacIsaac, could not be reached for comment Wednesday, nor could Christi Marie Kunzig, a lawyer in the office of Nassau County Attorney Carnell Foskey, representing the government.