Keane v. Samuel Tile Corporation

—In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Burrows, J.), entered July 14, 1994, which, upon an order entered July 7, 1994, granting the defendant’s motion to dismiss the complaint, dismissed the complaint. The plaintiff’s notice of appeal from the order entered July 7, 1994, is deemed a premature notice of appeal from the judgment (see, CPLR 5520 [c]). 419 Ordered that the judgment is affirmed, with costs. The gravamen of the plaintiffs complaint is that the motor vehicle accident which resulted in the death of Emad Samuel was caused by the defendant’s negligence in overloading the van Samuel was operating at the time of the accident. In light of the plaintiffs failure to comply prior to trial with the defendant’s discovery demand seeking the names and addresses of all of the witnesses the plaintiff expected to call to testify at trial, it was proper to preclude the plaintiff from introducing any such testimony (see, Hughes v Elias, 120 AD2d 703). In the absence of any such testimony, the plaintiff could not establish that the van was overloaded or that this condition was the proximate cause of the accident. Thus, the plaintiff could not make out a prima facie case of negligence, and the defendant’s motion to dismiss was properly granted (see, De Vito v Katsch, 157 AD2d 413, 418). Sullivan, J. P., Thompson, Copertino, Krausman and Florio, JJ., concur.