Bohan v City of New York

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Bohan v City of New York 2012 NY Slip Op 30952(U) April 10, 2012 Supreme Court, New York County Docket Number: 116997/05 Judge: Barbara Jaffe Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] ANNED 0N411112012 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY q" PART PRESENT: Justice . Index Num-cr : 116997/2005 BOHAN. NICHOLAS vs. CITY OF NEW YORK SEQUENCE NUMBER : 004 INDEX NO. MOTION DATE - MOTION SEQ. NO. DISMISS - The followlng papers, numbered I to Notlce of MotlonlOrder to Show Cause Answering Affidavits - , were read on this motlon tolfor - Affidavlts - Exhibits -- IW s ) . I -7 Exhlblts Replylng Affidavits [No($). 9 1 No(s). ---> Upon the foregolng papers, It Is ordered that this motlon is ..................................................................... c 1 CASE DISPOSED ~ M N F I N A DISPOSITION L CHECK AS APPROPRIATE: ........................... MOTION IS: flGRANTED 0DENIED 0GRANTED IN PART $E HR : CHECK IF APPROPRIATE: ................................................ 1- 1 SETTLE ORDER flSUBMIT ORDER L DO NOT POST uFIDUCIARY APPOINTMENT uREFERENCE' I. CHECK ONE: 2. '3. [* 2] SUPREME COIJRT 0 : T H E STA'lE OF NEW YOKK 1 COUNTY OF NEW YORK : PAR'['5 ..................................................................... x NICHO1,AS I301TAN AN rIWAN'J'UNDER 1'1IK AGE 01; I~OURTEEN (14) YEARS BY Ills MOTHER AN11 NA'I'IJRAL GUARDIAN, .IIiSSICX C O B 0 AND JESSICA COBO, TNI)IVIDIJAT,I,Y, Plaintiffs, hides No. 1 I6997/05 Motion Subiu.: Motion Seq. No.: 113112 004 DECISION & ORDER -against- NEW YOHK COUNTY CLERK'S C7FFIC'For plaintlffs: Robert Genis, Esq. Soiiin Kr Genis One Foi-dharn I'lazn, SIC. 907 Bronx, NY 10458 7 18-561-4444 For City: Stacy L. Cohcn, ACC: Michael A . Cardozo Corporation Counsel 100 C'IlLII.Ch St., 4"' FI. New York, NY 10007-260 1 2 12-788-0609 Hy notice of motion dated August 5 , 20 1 1, defeiidmt City moves piirsuaiit to CPLR 121 1 for an order disniiissing plaintiff Cobo's complaint, pursuant to CPLR 3 103 for a protective order, and pursiiarit to C'PLR 2221 (a) for ;in order vacating portions o f a Jime 14, 201 1 compliancc conference ordcr (Order). PlainliKs conccdc that Cobo's individual claims are time-barred, but oppose thc rcmuinder of City's motion. A , PERTINEN'I' HACKGROUND On August 12, 2003, the infant plaintiff was injured when he allcgcdly drove his scooter into a crack on Ihc sidewalk in frotit olpreinises located at 632 and 640 Wcst l7lstStrect iii Mald1altan (prerniscs). (Allirmation of Jessica Wisnicwslci, ACC, dated Aug. 5 , 20 1 1 [* 3] plaintifli allegc that tlic accidciit oocurrcd 011 thc s i d w a l k and/or tree well in front of the preiiiiscs. ( / d ). In their siiiiimoiis and coinplaint datcd 1)eccmbcr 2, 2005, pl~~iiitilfs allegc that the accident occurred on the sidcwalk in ljont oi'tlie preiiiises. (fd , Ilxh. 8 ) . In a vel-ilkd bill of particulars datcd April 2 1, 2007, plajntiffs again assert that the accident occurred 011the sidewalk and/or tree well in front ol' the preiniscs. ( I d , Exh. D). At an examination bclbre trial (ELI'T) lielcl on November 28, 2005, C'obo testiiicd, as pertinent herc, that a crack in tlic sidewalk caused the infant plahtilf to fall, and that afiier lie 1dL she saw that the whecl of his scooter was stuck in the crack, which shc dcscribed as a pcxtion of cement that was missing from the sidcwalk, appi.oxjmately six to twelve inchcs long and two to three inches deep. She recalled that there was a tree near thc crack but iivt i n the sanlc cement slab or flag as thc crack, ( I d , Exh. E). 'Thc infant plaintiff' has not testilkd at an EDT. At an KB'I' conducted on September 1 1, 2008, a City Department oll'ransportatioii (1301') witness testilicd as to various records found during a search of DCIT's iilcs for rccords related to the accidcnt location. (Id., Rxh. F). At an EBT hcld 011 August 26, 2009, William Stcyer, a City Ikpartiiient of Parks and Recreation (Parks) witness, testified as to a search of Parks's documents. (Id., Exh. G). On May 26, 20 I O , a Highways aiid Sewer inspcctor employed by DOT testiGcd at an EB1' as to various work done at the location. (Id., Exh. 1 I). At ai 1'BT held on September 22, 2010, Roy C'onmer, an assistant civil engineer in DCIT's Sidewalk Managemcnt Unit, tcstitied as to various DOT documcnts and stated that the director of the IJiiit is Ali Sadriyoun. Wliilc plaintiffs' counsel proccedcd with Comiicr's EB'I', [* 4] lie ub.jccted to City's failure to producc Sadnyoun and did not waive his ERT. (fd,Exh. I). In the June 201 1 Ordcr, City was directed to produce Sadriyoun for an EHT, along with (he continued EB'fs of Steyer and C'cs~nmer, and xi E13'1' o l a witness from City's Uepartmcnl uf' Design and Consiruction (DDC'). (Id., Exh. Jj. I3. CON'I'IENTIONS City contends that it has already produced scveral witncsses for rieposition, along with iiwiierous documents, without plaintiffs having specified the cxact location and/or causc o l thc accidcnt, observing that if thc accident occurred on thc sidewalk, any tcstirnony from Parks's ernployccs as to a trccwell at tlic location is iirclcvant. City thus requests that plaintill's idciitily thc exact cause and/or location of the accident beforc any further depositions are held, and that if morc depositions are ordercd, that plaintiffs' questions be liinitcd to new documents provided by City. It also objccts lo producing Sadriyoun as his testimony is duplicative of Cominer's, observing that C'ommer testif~cd his ltnowlcdge of the relevant issues is eqirivalent to that Sadriyoun's. (Affirmation ol'Jessica Wisniewski, ACC, datcd Aug. 5 , 201 1). Plaintiffs deny that City presents any grc~unds vacating the Order, observing that it lor was writtcn after extciisive oral argmiciit, or that Cily has coniplicd with numerous discovery requests and court orders, thus meriting sanctions. Tlicy also contend that they havc sufficicntly and consistcntly identified the accident location as the arca "where the treewell ineels tlic sidewalk in front of thc premises." (A~fiIJlatioli Kobert Gcnis, Esq., dated Nov. 3, 201 1). of I n rcply, City denies having Failed to providc discovcry, that plaintilh have adequately identilied tlic localion of the defuct, or that sanclions are warranted. (Rcply Allirirmation, datcd Dec. 12,201 1 j. 3 [* 5] c . ANA1,YSIS 1 lere, c ily states 110 grounds for vacating the Order, and plaintiffs s~il lkiei~tly identify tlic accident locatioii as the sidewalk and/or trcewell in front of the prmises. Inclced, City offers ~ i c l cvidcnce that it has bccn cannot scck relevant rccords based on plaintiffs description ol thc location. Morcovcr, having agrccd to produce Sadriyoun and thc DlIC witness, and as it is undispuled that the l<HTs01. Skycr and Colimier are continued based on newly-lmduced documents and/or new records searches, City has not establishcd its entitlcincnt lo a protective ordcr. I lowever, plaintiffs examination 01 Stcycr and C ominer is hereby limited to new qucstions and any iicw documents produccd by City. I decliiic to sziu .ri]ion/e award sanctions against City absent cvidence that it engagcd in conduct undertaken primarily to delay or prolong the rcsolution of tlic litigation. (22 NYCRK 130-1.1 [~][2]). iv. CONCLUSION Accordingly, it is liereby OIIIIERED, that dcfcndanl City ofNcw York s inntion is granted only to the cxtent of disiiiissing plaintiff Jessica Cobo s individual claims against it. ENIKR: DA WI: April 10, 20 12 Ncw York, New York APR 1 0 2012 4 FILED

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