Gonzalez v New York City Transit

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Gonzalez v New York City Transit 2012 NY Slip Op 31002(U) April 17, 2012 Sup Ct, New York County Docket Number: 105199/10 Judge: Michael D. Stallman 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. lNED ON411712012 T- [* 1] SUPRF,ME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Hon. MICHAEL D, STALLMAN I. PART 21 JurtlcO 101199/1~ INDEX NO. GONZALEZ, DEMETRIO FILE vs. NEW YORK CITY TRANSIT I MOTION DATE 1/19/12 MOT10N8EQ6N0. 002 SEQUENCE NUMBER : 002 STRIKE ANSWER . - Tha followlng papen, numbered I to 4 Amrndd M o t h of Motlo+ Amrmatlon AfW 172012 . - were read on thk r f- a r nln w - Exhlbb A%OUNW CLERK S OFFICEIN o w ~ - Exhlbb A-B Rsplylng Afflnrutlon - Exhlbtla 1.2 IW). 9 Aniwerlng Atnmtlon I N O W4 Upon the foregolng papers, it is ordered that plaintWs motion to strike the answer of defendant New York City Transit Authority is denied; and It is further ORDERED that, by May 31, 2012, defendant New York City Transit Authority shall provide copies of cleaning recordsfor the Dyckman stationfrom December I 2009 to March I 2010, and from Deeember I 2008 to March I , , , , 2009. P 81 $ Pg In this action, plalntlff alleges that, on February 8,2010, he slipped and fell due to a defective condition on a stairway leading to the A train at the subway station at Dyckman Street and Broadway in Manhattan. According to the verlfled blll of particulars, the stalrway Is designated as OW. (Fader AMrm., Ex A [Bill of Particulars] 14.) The bill of particulars also alleges that defendant New York City Translt Authority (NYCTA) falled to remove debris, including salt, sand andlor Ice removal agenb from the stairs despite the lack of snow and/or ice, in a reasonable period of time. (Id. fi 6.) Plaintiff sewed a notice for discovery and inspectton dated May 21,2010 upon NYCTA, which demanded, among other things: 2. Exact duplicate copies of all records, documents, logs andlor writings coneernlng the placement of any snow andlor ice removal substances or productson the stairs of the subject subway station for two (2) weeks prior to and including February 8,2010. (Contlnued Page 1 of 5 . . .) [* 2] Gonzalez v New York C/ty Tr. Auth,, Index NO. 106199/10 3. Exact duplicate copies of alt records, documenb, logs andlor wrltlngs concerning cleanlng and cleantng schedule$; partlcularly with regard to the stalrways withln the subJectsubway station, for six months prior to the accident date incluslve of the accident date. (Fader Afflrm., Ex C.) By letter dated February 16,2011, NYCTA responded, 2. Snow Removal Records: None, as subject staiway is not owned or maintalned by the New York City Transit Authority. Please also note that defendant does not maintain snow removal records for underground stations, 3. Cleanlng Schedules: None, as subJectstairway is not owned or malntained by the New York City Transit Authorlty. (Fader Afflrm., Ex D.) By so-ordqred stipulations dated June 30, 2011 and October 27, 2011, NYCTA agreed to serve a supplatnental reaponse to platntlffs notlce for dlscovery and Inspection dated May 21, 2010. (Fader Affirm., Exs F, G.) Plalntiff now moves to strike NYCTA s answer on the ground that NYCTA falled to comply with two prlor so-ordered stipulatlons directing service of a supplemental response to plalntlff 8 notlce for dlscovery and Inspection. According to plalntlff, an investlgatlon revealed that defendant 4761 Broadway Associates LLC is the successor-in-Interestto the owner of stairway O s , not NYCTA. Wowevar, plaintiff claims that the investJgatlon also revealed that NYCTA performed maintenance andlor repair of stainway 02A. NYCTA opposes plalntlffa motion, and submits a copy of the cleaning schedule of the Dyckman Street subway station for the date of the accldent, to show that NYCTA has nothingto hide; the schedules do not includestalrcases which the AUTHORIW does not own. (Shufer Opp. Afflrm. fi 6.) NYCTA also submlts coples of Wme control logs (daily personnel sign-in sheets) for two weeks prlor to and Includingthe date of the accldent (Shufer Opp. ACnrm, Ex B.) NYCTA asserts that the search for these logs was delayed due to personnel changes. The drastic remedy of strlking an answer is inappropriate, absent a clear (Continued. .) I Page2of 5 [* 3] Gonzalez v New York CMy Tr. Auth., Index No. 106199/10 showing that defendants fallure to complywtth discoverydemandswaswllhl or contumacious." (Dalmlerchryslerlns.Co. vseck, 82 ApSd 681,582 [lst Dept 201I],) A pattern of noncompliance with court orders and discovery demands and fallure to offir a reasonableexcusefor the noncompliance may give rise to an Inference of wilful and contumacious conduct. (See e.g. Henderson v Manhattan and Bronx Surface Tr. Operatlng Auth., 74 ADSd 654 [ l s t Dept 20101; Fish &Rlchardson,P.C. vSchlndler, 75AD3d 219 [Imt Dept 20101; Bryent v New York Clty Hous. Auth., 69 AD3d 488 [ l s t Dept 20101; Flglel vMet Food, 48 AD3d 330 [lst Dept 20081.) However, "[bJelated butsubtantlal compliancewttti a dhcoveryorder uhd~rmlnes p M o n that the the delay was a product of willful or contumaclous conduct." (Cambry v Llncgln Gardens, 50 AD3d 1081,1082 [2d Dept 20081; see also Gfadallle v City of New Yo&, 62 AD3d 279,284 [ l s t Dept 20081.) Here1: NYCTAagreedtosupplement Its response Intwo priorswdered stlpulatlons, but it I not clear that NYCTA agreed that its supplemental s responsewould inciudeelthersnowremoval records or cleanlng recordsfor stalrway O2A. NYCTA's prlor letter dated February16,201Istated that Itdid not keep snow removal records for underground stations. As plalntlff pointst out, NYCTAdld not serve any supplementalmsponse within the deadlines of prior so-ordered stipulations. However, NYCTA belatedly provided additional discovery on this motion, whlch therefore undermines the Inference of wlllfulness. (Cambry,50 AD3d 1081,supra.) Given the wording of the stipulations, and the recordsthat NYCTA produced, s striking NYCTA's answer I not warranted. As piaintlfF p i n t a out, accldents allegedly lnvolvlngstairway 026 at the Dyckmansubway station were the subJectof prlor litigation against NYCTA, Sanchez vNew York Clfy Tr.Auth., Index No. 107304/2006and Wndley v City of New York, Index No. 100182/200~.In Wndley, 4761 Broadway Associates LLC contended that It never rnalntalned, operated, controlled or repaired the subject staircase, and that maintenance and repalr records (Contlnued Page 3 of 5 . . .) [* 4] Gonzalez v New York City Tr, Auth,, index No. lOS199/10 obtalned during discovery In Sanchez purpohdiy indicated that NYCTA performedmaintenanceand repair on stairway OW. Those records that were provided were apparently produced in response to a demand for maintenance and repair records for the Dyckman station. That NYCTA might have performed maintenance and repair of stalnnray 02A notwithstandlng that it did not own it raises the possibility that it 8180 cleaned and performed snow and ice removal of that stairway. However, to the extent that plaintiff contends that tho existence of records of maintenance and repalr of stairway 02A proves that NYCTA willfully failed to disclose cleaning records, this argumdnt is unpersuasive. Structural maintenance and repair I8 not synonymous with cieanlng and snow and ice removal. It Is not clear from NYCTA s response whether It looked for cleaning records for stairway 02A and found none, or whether NYCTA had not looked for cleaning records for stalrway 02A because It believed none would exist. As plaintiff point8 out, It I possible that, even if NYCTA does not own stairway s 02A, it might nevertheless have a legal duty to keep it reasonably safe, or NYCTA might have voluntarily assumed a duty to clean, maintain, or repair stairway OM. NYCTA cleaning records for the Dyckman statlon exist. Because the cleaning records mlght contain an entry for stairway 02A, disclosure of the cleaning records might lead to admissible evidence a$ to whether NYCTA cleaned or performed snow and Ice removal of atalrway 02A. Because pialntlff is asserting that he slipped and fell due to materials placed on the stairway Intendedto remove snow and ice, the cleaning records of the Dyckman station for the winter months are the appropriate starting point for production of these records. (Continued.. .) In Wnd/ey, 4781 Broadway Aaroclates LLC s motlon for summary judgment dl6mlsslng the complalnt and crosa clalmr as agalnrt It was granted on default by declslon and order dated May 20,201 1. However, NYCtA s motlon to vacate that prlor deelrlon and order has been granted. (Wndey v C/ty of New York, Index No. 1001822006, Sup Ct, NY County, Aprll I O , 2012, Stallman, J.) Page4of 5 _J -- [* 5] Gonzalez v New York City Ti.. Auth., Index No. 106199/10 Therefore, on or beforethe next compliance conferenceon May 31,2012, NYCTAshallprovide copies o cleanlng recordsfarthe Dyckmanstation from f 201 2008 to March I, December I , 2009 to March I, 0, and from December I, 2009. NYCTA I being dlrected to produce post-accident cleaning records s because there Is a questlon ast NYCTA's malntenanceor control of stairway o 02A. Coples,to -counsel. Now York, New York I. Check ~ n s................................................................ : 2. Chock H rpproprlrto: MOTION IS: 3. Chouk If rpproprlato:................................................ .............. 0CASE DISPOSED NON-FINAL DISPOSITION Q ~ N T E D0DENIED 0Q ~ N T E D PART IN OTHER 0SUBMIT ORDER 0SETTLEORDER 0DO NOT POST FIDUCIARYAPPOINTMENT 0REFERENCE FILED NEWY ~ R K COUNTV CLERK'S OFFICE Page 5 of 5

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