Manzanares v ATM Four LLC
2012 NY Slip Op 30998(U)
April 5, 2012
Supreme Court, Nassau County
Docket Number: 22952/10
Judge: Karen V. Murphy
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Short Form Order
SUPREME COURT - STATE OF NEW YORK
TRIAL TERM. PART 11 NASSAU COUNTY
Honorable Karen V. Murphv
Justice of the Supreme Court
Index No. 22952/10
Motion Submitted: 2/10/12
Motion Sequence: 005, 006, 007
ATM FOUR LLC, ARTHUR MOTT, INC., n/kla
ARTHUR MOTT REAL ESTATE, LLC d/b/a ATM
REAL ESTATE a/kla ATM REALTORS,
The following pap rs rea42Bt
Notice of Motion/Order to Show Cause........................
Answering Papers....... ....
Briefs: Plaintiff s/Petitioner ' s........................................
Defendant' slRespondent' s........................... .......
This motion by the defendants ATM Four LLC , Arthur Mott , Inc. , n/kla Arhur Mott
Real Estate , LLC d/b/a A TM Real Estate alkla A TM Realtors for an order pursuant to CPLR
3124 compellng the plaintiff to provide additional discovery and to supplement his Bil
3126 precluding the plaintiffs expert Dr.
Donald Greene from offering any evidence at trial or , in the alternative , an order pursuant
3124 compellng the plaintiff to supplement his expert disclosure is determined
as provided herein.
of Particulars and an order pursuant to CPLR
This cross-motion by the plaintiff Eugenio Manzanares for an order pursuant to CPLR
31 03( c) granting him a protective order excusing further production of discovery regarding
his expert Dr. Donald Greene s anticipated testimony; an order pursuant to CPLR
3123 requiring the defendants to admit certain facts; an order pursuant to CPLR ~ 3043(3)
deeming the plaintiff s discovery sufficient; and , an order striking the defendants ' sixth
affirmative defense pursuant to Article 16 of the CPLR is determined as.provided herein.
This motion by the defendants A TM Four LLC , Arthur Mott , Inc. , n/ki a Arthur Mott
Real Estate , LLC d/b/a A TM Real Estate aIa A TM Realtors for an order pursuant to CPLR
~~ 2305 , 2307 , issuing So- Ordered Judicial Subpoenas
permitting non-part depositions of Police Officer Matthew Murphy and C. O. Susan Lund
and securing certified copies of all of the Vilage of Hempstead' s Police Department records
referable to an incident involving Eugenio Manzanares on October 15 , 2010 is determined
as provided herein.
In this action , the plaintiff seeks to recover damages for personal injuries sustained
on October 15 , 2010 when he was assaulted in the lobby of an apartment building located at
271 Washington Street in Hempstead which was owned by the defendants. Numerous
discovery issues have been raised via these motions.
In their Demand for a Verified Bil of Particulars , defendants sought inter alia
description of the accident (including) a specific statement of each act or omission by the
defendants that (the plaintiff) assert( ed) was negligent; and a statement as to the nexus
between each asserted negligent act or omission by (them) and plaintiff Eugenio
Manzanares ' alleged injuries. " .If the plaintiff alleged that any dangerous or defective
condition was caused or allowed to exist by them , the defendants demanded that the plaintiff
state with particularity: " ( t )he nature and extent of each dangerous or defective condition that
(he) assert(ed) was caused by (them); the nature and extent of each condition not caused by
(them); and (that he) state the nexus of each condition to (his) alleged injuries. " The
defendants also requested that if the plaintiff " allege( d) actual or constructive notice of any
defect or dangerous condition , that (he) identify the condition and the date of the notice of
actual , as well as the nature and substance of the actual and/or constructive notice , and the
length of time that the defect or condition that the condition is alleged to have existed if
In his Verified Bil of Particulars ,
the plaintiff has asserted inter alia
defendants were negligent in failng to heed prior complaints concerning the lack of security
at the subject incident situs given the incidents of prior similar crimes at and around the
subject incident situs; in failng to heed prior complaints and/or incidents of prior criminal
acts within close proximity to the subject incident situs location; in causing, permitting and
allowing the perimeter of the premises to be , become and remain open and not secure; in
failing to secure the perimeter
of said premises; and , in failing to provide a properly
functioning intercom system. The plaintiff asserted that the particulars concerning notice
were an improper demand on the ground that notice is not a condition precedent to this
action inasmuch as he claimes that the defendants , their agents , servants and/or employees
caused and/or created the defects and hazards complained of herein. The plaintiffmaintained
that in any event " actual notice is claimed in that the defendants , their agents , servants and/or
employees knew of the defects and hazards complained of herein for a long time prior to
happening of this incident (and that) constructive notice is claimed in that the condition
complained of existed for such a length of time as the defendants , their agents , servants
and/or employees knew , or in the exercise of reasonable care , dilgence and timely
inspections , could and should have known of the condition for a long time prior to plaintiff s
Via letters dated September 27 , 2011 and October 25 , 2011 , the defendants sought
supplemental Bils of Particulars regarding,
the plaintiff s claim that the
became/remained unsecured; what was improper about the
intercom system; prior complaints made; and , actual and constructive notice. With the
perimeter of the premises
exception of stipulating that the
intercom and door locks
functioning properly on the date of the incident ,
of the premises were not
the plaintiff refused to supplement.
Defendants seek preclusion of any such evidence not produced or in the alternative to compel
99 3126, 3124).
The plaintiff has not provided details of " a statement of when and to whom " actual
He is directed to do so within 20 days of
service of a copy of this order upon it or be precluded from offering such evidence at
trial. The plaintiffs challenged responses otherwise comply with CPLR ~ 3043 and the
defendants ' application to compel a supplemental bil of particulars or preclude evidence at
trial is accordingly otherwise denied.
notice was given.
Via the aforementioned letters , the defendants sought further medical authorizations
many of which have been provided but some of which have not.
A notarized authorization for the release of the plaintiff s N ew York State Department
of Labor records has been produced , as has one for the plaintiff's pharmaceutical records
from Walmart Pharmacy. The plaintiff has also produced the last known address of nonpart witness Faviola Farias , who resides at 2 " Deasy Lane " thereby establishing that Deasy
Lane is in fact not a non- part witness but a location.
In the Notice to Produce , the defendants sought HIPP A compliant authorizations for
the medical providers who treated the plaintiff in regard to the February 2009 incident which
involved another attack at the same location. The plaintiffs hospital records from that
hospitalization reflect that he in fact suffered a concussion with loss of consciousness and
a possible intracranial hemorrhage or injury. In this action , the plaintiff again alleges that
he suffered a concussion and/or a traumatic brain injury. Contrary tothe plaintiffs position
this demand is not overbroad and the plaintiff is hereby directed to comply with that demand
within 20 days of service of a copy ofthis order. Similarly, while the plaintiff maintains via
letter by counsel that " a HIPP A compliant authorization for the medical facility plaintiff
treated at in Franklin Square " has been supplied , one has not been submitted. The plaintiff
is also directed to provide that authorization.
As for plaintiffs expert disclosure ,
CPLR ~ 3101(a)(4)(d)(l)(i) requires a part to
identify their expert and his qualifications and to disclose " in reasonable detail the subject
matter ; as well as " the substance of the facts and opinions " on which he is expected to
testify; and , a " summary of the grounds " for his opinion. The plaintiff has represented that
inter alia that the defendants were negligent " in failing to
hire and employ adequate supervisory personnel; in failng to properly supervise , train and
instruct security personnel; in failing to promulgate and enforce adequate and proper rules
Dr. Greene is expected to testify,
and regulations concerning security supervision of the premises; in failing to station security
personnel at necessary locations on the premises including the incident
situs so as to
effectuate a reasonable level of safety and security therein; . . . in causing and creating a trap
for the unaware , more particularly the plaintiff; . . . in causing, constructing, allowing and
maintaining a trap for visitors to the premises; in failing to conduct a risk analysis; in failng
to take corrective steps , measures or actions following prior similar incidents; . . . (and) in
being negligent under the totality ofthe circumstances inasmuch as the site of the assault on
the plaintiff was and is a site apt to be preferred as a crime target , which the defendants , their
agents , servants and/or employees , created , caused , allowed , and failed to correct in that the
defendants , their gents , servants and/or employees , knew or in the exercise of reasonable care
could and should have known of the site s high potential for criminal activity. . . .
s opinion that while no further disclosure regarding Dr. Greene
opinions , per se , is required , the plaintiff has not adequately provided " a summary of the
grounds " for his opinion. Nevertheless , CPLR ~ 3101(d)(l)(i) only obligates a part to
disclose that information " upon request" and the defendants ' Demand has not been submitted
herewith. This court is accordingly unable to evaluate whether the plaintiff has complied
with the defendants ' Demand. The defendants ' application pursuant to CPLR ~ ~ 3124 , 3126
to compel the plaintiff to supplement discovery with respect to Dr. Greene s anticipated
testimony or to preclude portions thereof is denied.
It is this court'
The plaintiff has requested that the defendants admit that " 271 Washington Street , in
the State of New York , County of Nassau , at the time of the incident was a commercial
building ; that " 271 Washington Street , in the State of New York , County of Nassau , at the
time of the incident had over six apartment units ; and , that 271 Washington Street , in the
State of New York , County of Nassau , was at the time of the incident a " Multiple Dwellng
With the exception of admitting that the building had over six apartments , the defendants
have refused to admit any of these things on the grounds that the requested admissions
involve interpretations of law and legal conclusions and were improper admissions beyond
the purview of CPLR ~ 3123.
Dwelling Law Article 1 ~ 4 (7) defines a " multiple dwellng " to which the mandates
2 9 8) Whether
of the Multiple Dwellng Law clearly
the building meets the statutory definition requires a legal determination rather than a factual
(Multiple Dwellng Law Article
one thus Defendant need not supplement the responses to the Notices to Admit
Brookdale Univ. Hosp.,
Long Is. R.
2d 718 (2d Dept.
45 A. D.3d 537 , 844 N.
2d 388 (2d Dept. , 1994)).
2d 455 607 N.
As and for their sixth affirmative defense , the defendants have claimed the application
of Article 16 of the CPLR. CPLR ~ 1602(2)(iv) provides:
The limitations set forth in this article shall: 2. not be construed to
impair , alter , limit , modify, enlarge , abrogate orrestrict (iv) any liabilty
arising by reason
of a non- delegable duty or by
reason of the
doctrine of respondent superior.
Section 78(1) of the Multiple Dwellng Law imparts a non- delegable duty on owners of
multiple dwellngs. It provides:
Repairs. 1. Every multiple dwellng, including its roof or roofs , and
every part thereof and the lot upon which it is situated , shall be kept in
good repair. The owner shall be responsible for compliance with the
provisions of this section; but the tenant shall also be liable if a
violation is caused by his own wilful act , assistance or negligence or that
persons who shall wilfully violate or assist in violating any provision of
this section shall also jointly and severally be subject to the civil
penalties provided in section three hundred four (emphasis added).
of any member of his family or household
or his guest.
CPLR ~ 1602(2)(iv) relating to a
non- delegable duty on the part of a defendant , constitutes an exception to the rule of several
2d 914 (4
(Denio v. State of New York 283 A. 2d 937 , 723 N.
liabilty of article 16.
2d 776 , 749 N. 2d 184 , 725
citing Faragiano v. Town of Concord 96 N.
Rangolan v. County of Nassau 96 N. 2d 42 , 749 N. 2d 178 , 725
2d 611 (2001). The plaintiffs motion to strike the defendants ' Sixth Affirmative
There is no merit to the (plaintiffs)
2d 609 (2001);
defense is denied.
Finally, the defendants
to authorize the non-part depositions of the Vilage of Hempstead Police
Officer Matthew Murphy and C. O. Susan Lund is denied with leave to renew , by Order to
Show Cause pursuant to CPLR ~ 2307. Any proposed subpoena offered for the Court'
signature shall be submitted separately and not solely as an exhibit in support of the motion.
' application for Judicial Subpoenas
The foregoing constitutes the Order of this Court.
Dated: April 5 ,
Mineola , N.
COUNTY CLERKJ S OFFtCE