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
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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.
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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
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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',
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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
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câ. ANA1,YSIS
1 lere, câily states 110 grounds for vacating the Order, and plaintiffs s~ilâlkiei~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 plaintiffsâ description olâthc
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, plaintiffsâ examination 01 Stcycr and Câominer 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 âundertaken primarily to delay or prolong the rcsolution of tlic litigation.â (22 NYCRK
130-1.1 [~][2]).
iv. CONCLUSION
Accordingly, it is liereby
OIIIIERED, that dcfcndanl City ofNcw Yorkâs inntion is granted only to the cxtent of
disiiiissing plaintiff Jessica Coboâs individual claims against it.
ENIKR:
DAâWI:
April 10, 20 12
Ncw York, New York
APR
1 0 2012
4
FILED
