Scott v Metropolitan Suburban Bus Auth.

[*1] Scott v Metropolitan Suburban Bus Auth. 2006 NY Slip Op 50625(U) [11 Misc 3d 1079(A)] Decided on April 11, 2006 Supreme Court, Nassau County Brennan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 11, 2006
Supreme Court, Nassau County

YOLANDA SCOTT, Plaintiff,

against

METROPOLITAN SUBURBAN BUS AUTHORITY a/k/a MTA LONG ISLAND BUS, MOHAMED SAHEED, a/k/a MOHAMED SHAHEED, COUNTY OF NASSAU, CUMMINS, INC., CUMMINS ENGINE COMPANY, INC., and ORION BUS INDUSTRIES, INC. , Defendants.



LOUIS JOUBIN, ANTHONY COUNSINS, CONETTA COUNSINS, DESMOND KELLY, AMANDA KELLY and YVONNE STOKES-KELLY, Plaintiffs -against-

against

METROPOLITAN SUBURBAN BUS AUTHORITY, a/k/a MTA LONG ISLAND BUS, and MOHAMED SAHEED, a/k/a MOHAMED SHAHEED Defendants



013189/03

Lawrence J. Brennan, J.

Motion (seq No. 16) by the attorney for the Plaintiff, Yolanda Scott in Action No. 1, and Cross-Motion (seq. No. 17) by the attorney for the Plaintiffs, Louis Joubin, et. al., in Action No. 2, for an Order pursuant to 22 NYCRR 202.19 and 22 NYCRR 202.21(d) certifying these matters ready for trial and authorizing the respective plaintiffs to each file a Note of Issue and Certificate of Readiness for Trial, are granted.

These are joint actions by seven plaintiffs to recover damages for alleged severe personal injuries arising out of an accident on February 19, 2003, wherein it is contended that a Defendant MSBA passenger bus, driven by the Defendant Mohamed Shaheed, suddenly accelerated as it was turning into a parking space and crashed into the Hempstead Terminal building operated by the Defendant, MSBA.

The plaintiff, Yolanda Scott, in Action No. 1, sustained injuries requiring amputation of the lower portions of both her legs. The remaining plaintiffs in Action No. 2 allege significant orthopedic, neurological, and psychological injuries. All of the plaintiffs were apparently seated or standing either outside of or within the terminal at the time of the accident.

The Defendant, MSBA, the Defendants Cummins and Orion, and the Defendant, County of Nassau, have alleged comparative negligence and assumption of risk as affirmative defenses against all plaintiffs. The Defendants, Cummins and Orion, have also asserted cross claims and indemnification claims against the Defendants, MSBA and Shaheed, and the Defendant, County of Nassau.

Defendant Metropolitan Suburban Bus Authority a/k/a MTA Long Island Bus (hereinafter MSBA) filed a Notice of Appeal from this Court's Decision and Order dated December 7, 2005, requiring the deposition of the defendant MSBA's employee and senior vice president, William Norwich, who was present at the accident scene, and, according to another MSBA employee's deposition, directed employee activities thereat. The Order also directed further document discovery among the defendants and the Defendant MSBA's disclosure of certain statements made by the bus driver, Defendant, Mohamed Shaheed, in his employment termination [*2]arbitration proceedings, and to police, ambulance and hospital personnel after the accident.

CPLR 5519(a) does not automatically stay this Court from permitting the plaintiffs to file their Notes of Issue and Certificates of Readiness for Trial during the pendency of the appeal.

CPLR 5519(a)(1) "stays all proceedings to enforce the judgment or order appealed from pending the appeal . . . where the appellant is the state or any political subdivision of the state." The plain language of the statute makes it clear that only "proceedings to enforce the judgment or order" are stayed and not all proceedings in the action. In Shorten v City of White Plains, 216 AD2d 344, the Court stated that "since the trial of this action is not a proceeding to enforce the order which denied the City's motion for summary judgment, the statutory stay provisions of CPLR 5519(a)(1) clearly do not operate to prevent the trial from going forward (citation omitted)".

Therefore, if the automatic stay provisions of CPLR 5519(a)(1) do not automatically prevent a trial of the action from proceeding, there is no reason to enjoin, prevent, or preclude the action from being certified ready for trial if the order subject to appeal is not being executed and circumstances so warrant. See also Pokoik v Department of Health Services, 220 AD2d 13; Lopez v New York City Housing Authority, 178 Misc 2d 719. The filing of a Note of Issue was not directed by this Court's December 7, 2005 Order, and therefore not automatically stayed by the service of MTA's Notice of Appeal.

22 NYCRR 202.19(b)(iii) provides that complex discovery be completed within 15 months. Although "time-frames must be complied with unless otherwise shortened or extended by the Court depending upon the circumstances of the case" (202.19[b]), the projected date to complete discovery in the within action should have been December 17, 2004. The within motions are the 16th and 17th, respectively, to be made in this action.

To date, the case has appeared on the calendar of the Individual Assignment Part at least 26 times, the last twelve of which averaged more than two hours of both on-the-record and off-the-record discussions among the Court and counsel. More than twenty depositions have been conducted of parties, employees and non-party witnesses, and there have been hundreds of pages of documents and reports exchanged among counsel.

As recently as March 28, 2006, the Defendant MSBA was granted a deposition of Defendants Cummins or Orion employee, Lon D. Gersten, service engineer of the Hazard Analysis Group. Earlier depositions of Cummins/Orion witnesses took place prior to service upon any counsel of the documents and report he authored which was entitled "Hazard Analysis - Uncommanded Throttle-08.3G and L10G". This addressed a corporate investigation of potential electronic or software systems issues which may be relevant to the components in the L10G engine installed in the Defendant MSBA bus in question. This report was only served by the Defendants Cummins and Orion counsel on October 28, 2005 and again on December 21, 2005.

In addition, the Defendant MSBA was granted an Open Commission in California to depose non-party witness, Frank Shapiro, a former employee of Defendant Cummins, who retired on April 30, 2003. He is alleged to be familiar with the investigation of electronic components [*3]and computer software which are alleged to have governed acceleration-deceleration in the bus

engine in this accident.

Further, the Defendant MSBA was also granted an Open Commission to depose Robert Polzel, an employee of a related distributor corporation, Cummins California Pacific. It is alleged by Defendant MSBA's counsel that he is the corporate liaison between non-party Cummins California Pacific and the non-party Los Angeles Metropolitan Transit Authority (also referred to by counsel as the California Transit Authority), concerning incidents alleging sudden bus or vehicle accelerations in which Cummins or Orion products were used. Whether any engine-software or throttle components were the same as the ones in the MSBA bus involved in this accident is unclear at this time.

In addition, the Defendants, MSBA and Shaheed were granted an Open Commission to depose Paul Rankin, an employee of the Los Angeles Metropolitan Bus Authority (or California Transit Authority). Allegedly, he called a Nassau County Police Detective investigating this accident with respect to a similar accident in California. It is not certain that the engine or components in the purported California accident he called about were the same as the Cummins/Orior bus involved in the Hempstead terminal accident.

On March 28, 2006, the Court ordered that these final depositions must be completed by April 15, 2006. Counsel for Defendants Cummins/Orior has represented to the Court that his firm will be representing the two witnesses, Frank Shapiro (former Cummins employee) and Robert Pozell (Cummins California Pacific employee).

The Court notes that the Defendants Cummins and Orion, who are represented by the same counsel, were previously ordered at numerous Conferences to have disclosed all records concerning sudden acceleration accidents, incidents, claims, litigation, and/or investigations throughout the United States. These pertained to the specific Cummins and Orion mechanical,

electronic, and/or software components used in the engine of the accident bus herein for a five year period prior to this accident. This included copies of all pleadings and interrogatory replies in any pending, settled, or withdrawn lawsuits in state or federal courts which specifically related to the mechanical, electronic, or software components in the L10G engine in the MSBA bus involved in this accident.

Defendants Cummins and Orion will provide a Supplemental Affidavit by April 15, 2006, that all such records have been disclosed. It will be verified by an employee with knowledge of the extent of said document search and who is authorized by defendants to so represent.

22 NYCRR 202.1 Note of Issue and Certificate of Readiness (d) Pretrial Proceedings provides that:

"Where a party is prevented from filing a note of issue and certificate of readiness because a pretrial proceedings has not been completed for any reason beyond the control of the party, the court, upon motion supported by affidavit, may permit the party to file a note of issue upon such conditions as the court deems appropriate. [*4]

Where unusual or unanticipated circumstances develop subsequent to the filing of a note of issue and certificate of readiness which require additional pretrial proceedings to prevent substantial prejudice, the court, upon motion supported by affidavit, may grant permission to conduct such necessary proceedings."

Under the circumstances of the within action, plaintiffs shall be permitted to file Notes of Issue and Certificates of Readiness as set forth hereinafter. Should it be necessary for the Defendant MSBA and the Defendants Cummins and Orion to conduct further discovery after the determination of the appeal, and/or subsequent to the cases appearing on the CCP calendar, this Court may, upon motion by order to show cause and supported by affidavit, grant permission to conduct such proceedings, in the event that counsel are unable to agree to same without judicial intervention.

The Court notes that having ordered the foregoing discovery, counsel for the Defendants, MSBA and Shaheed, stipulated that the determination from the Bench at the March 28, 2006 conference would resolve the outstanding discovery motion which was also returnable on

March 28, 2006.

Furthermore, both counsel for Defendants, MSBA and Shaheed, and counsel for Defendants, Cummins and Orion, the only parties with outstanding discovery issues, stated that this Order would conclude all discovery, absent extraordinary revelations stemming from the affidavit, Open Commissions, or the depositions. This is reflected in the transcript of the conference before the Court on March 28, 2006.

In view of this above, there are no impediments to certifying this case as ready for trial. The Court will monitor compliance with its March 28, 2006 Order at the next conference.

Therefore, in the manifest interests of justice, this matter is hereby certified for trial and the plaintiffs are directed to file their Notes of Issue and Certificates of Readiness for Trial within thirty (30) days.

Motions for summary judgment must be filed within thirty (30) days of the filing of the Note of Issue. All in limine motions shall be made returnable not more than ten (10) days after the initial pre-trial conference.

Inasmuch as Plaintiffs' counsel have been directed to file their Notes of Issue over objection of counsel for Defendants MSBA and Shaheed, Defendants Cummins and Orion, and Defendant County of Nassau, items 1 through 9 of the Certificate of Readiness may be amended to so indicate. [*5]

All plaintiffs counsel are ordered to provide, upon future request of counsel for any of the

defendants or third party defendants, additional current HIPAA-compliant authorizations for production of their respective clients' medical records maintained by health care providers, hospitals, agencies or facilities.

Counsel are again are reminded that pursuant to CPLR 5521(a) "preferences in the hearing of an appeal may be granted in the discretion of the Court to which the appeal is taken." See also 22 NYCRR 670.7(b). This has been made repeatedly clear to all counsel.

It appears that one or more of the plaintiffs may be receiving some form of public benefits, whether Medicaid, food stamps, public assistance, or aid to dependent children (ADC). Each plaintiff's counsel shall forthwith determine whether there are any Department of Social Services, Medicaid, or Medicare liens being asserted against any plaintiff's recovery by any county in New York State or by the federal government, and immediately apprise defendants and third party defendants' counsel in writing of the status thereof.

In any application made for a special trial preference related thereto, any relevant statutory lien correspondence must be appended as exhibits.

Finally, there is nothing in the CPLR or the rules of the Court which prevents counsel from continuing to comply with previously-ordered document exchange and to conduct further party or non-party depositions as ordered at prior conferences and at the March 28, 2006 discovery conference. However, counsel are reminded that time is of the essence and they are expected to immediately complete any remaining discovery forthwith.

As stated hereinabove, all counsel, with the exception of counsel for the Defendant MSBA, stipulated before the Court at the March 28, 2006 conference that they are seeking no further discovery on behalf of their clients.

All counsel will appear for a further conference on April 27, 2006, at 2:00 P.M. There will be no adjournments granted without prior specific, written approval of the Court.

The attorneys for the movant and cross-movant shall each serve a copy of this Order on all other attorneys who have appeared in this action and each shall file proof of service thereof.

A copy of this Decision and Order must accompany filing of the Note of Issue.

This is the Decision and Order of the Court.

Dated: April 11, 2006 HON. LAWRENCE J. BRENNAN

Acting Supreme Court Justice