Mayorga v. Jocarl & Ron Co.

Saxe and Sweeny, JJ.,

dissent in a memorandum by Sweeny, J., as follows: The trial court erred in not allowing Mr. Peralta to testify on plaintiffs case. Accordingly, I dissent and vote to reverse and set the matter down for a new trial.

Contrary to the argument of the majority, it is irrelevant that the plaintiff did not conduct a sufficient investigation before the trial to identify Mr. Peralta as a potential witness. It was the defendant who pointed out in its opening statement Mr. Peralta might testify. Therefore, defendant certainly could not claim any surprise or prejudice. Furthermore,…