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
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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
Iâ
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
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-
were read on thk r f- a r
nln w
- Exhlbb A%OUNW CLERKâS OFFICEIN o w
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- 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
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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) âfalled 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.â (Id. fi 6.)
Plaintiff sewed a notice for discovery and inspectton dated May 21,2010
upon NYCTA, which demanded, among other things:
â2. 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.â
(Fader Afflrm., Ex C.) By letter dated February 16,2011, NYCTA responded,
â2. 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.â
(Fader Afflrm., Ex D.) By so-ordqred stipulations dated June 30, 2011 and
October 27, 2011, NYCTA agreed to serve a âsupplatnental reaponse to
platntlffs notlce for dlscovery and Inspection dated May 21, 2010.â (Fader
Affirm., Exs F, G.)
Plalntiff now moves to strike NYCTAâs 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 âhas nothingto hide; the schedules do not includestalrcases
which the AUTHORIW does not own.â (Shufer Opp. Afflrm. fi 6.) NYCTA also
submlts coples of Wme control logs (daily personnel sign-in sheets)â 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.
âThe 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.â 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 NYCTAâs 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 LLCâs 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, NYCtAâs 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
