Glaser v City of New York

Glaser v City of New York 2010 NY Slip Op 09395 [79 AD3d 600] December 21, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 16, 2011

Edith Glaser et al., Appellants,
v
City of New York et al., Respondents, et al., Defendants.

—[*1] Gassler & O'Rourke, P.C., Great Neck (Charles P. Gassler of counsel), for appellants. Michael A. Cardozo, Corporation Counsel, New York (Susan B. Eisner of counsel), for respondents.

Order, Supreme Court, Bronx County (Edgar G. Walker, J.), entered June 11, 2009, which, in an action for personal injuries sustained as a result of a trip and fall on an alleged roadway defect, denied plaintiff's motion to strike defendants-respondents' answer for failure to produce records related to street repairs and/or defects, unanimously affirmed, without costs.

The motion court properly found that the City defendants (the City) did not engage in willful and contumacious conduct in failing to produce records reflecting a street repair made at the location of injured plaintiff's fall (see generally CPLR 3126; Catarine v Beth Israel Med. Ctr., 290 AD2d 213, 215 [2002]). The record reflects that the City adequately responded to discovery demands, albeit in response to several orders calling for production, as well as motions to strike. Affidavits submitted by representatives of the City attesting to standard record searches they personally conducted in their departments for roadbed defects, complaints and repairs dating back three years from the accident date supported the City's position that no record of road repairs to the area where plaintiff fell could be located (see White v New York City Tr. Auth., 308 AD2d 341 [2003]; cf. Rivera-Irby v City of New York, 71 AD3d 482, 483 [2010]). The City also presented a Big Apple Map demonstrating a lack of prior written notice to the City of any defect [*2]at the accident location.

We have considered plaintiffs' remaining arguments and find them unavailing. Concur—Andrias, J.P., Saxe, Moskowitz, Acosta and Freedman, JJ.