Issing v Madison Sq. Garden Ctr., Inc.
2012 NY Slip Op 31047(U)
April 13, 2012
Sup Ct, NY County
Docket Number: 116265/06
Judge: Louis B. York
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4NED ON411912012
[* 1]
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
LOU93
B
h
YORK
PRESENT:
PART
I W .P .
. * Y
b,
Justice
MOTION DATE
MOTION SEQ. NO.
The following papem, numbered 1 to -,
were read on t h i ~
motion tolfor
Notice of MotionlOrder to Show Cause - Affidavits
Answerlng A f f l d a v h
- Exhibits
IW a ) .
INo(3).
INo(3).
- Exhlblts
Replylng Affidavits
NEW YORK
COUNTYCLERKâS OFFICE
\
1. CHECK
ONE:.....................................................................
2. CHECK AS APPROPRIATE: ...........................
3. CHECK IF APPROPRIATE:
MOTION I :
S
................................................
0CASE DISPOSED
[7 GRANTED
I
, J.S.C.
CI
DENIED
-?
GRANTED IN PART
oOTHER
0SETTLE ORDER
0SUBMIT ORDER
0DO NOT POST 0FIDUCIARY APPOINTMENT 0REFERENCE
[* 2]
PREME COURT OF T E
TATE OF NEW YORK
1
COUNTY OF NEW YORK: I A S PART 2
X
_ _ _ _ _ f _ _ _ _ _ _ - _ _ _ _ _ f _ _ _ _ _ _ _ _ l _ _ _ _ _ _ _ _ l _ _ _
THOMAS G. ISSING and ELLEN ISSING,
Plaintiffs,
Index No. 1 1 6 2 6 5 / 0 6
-againstMADISON SQUARE GARDEN CENTER, INC.,
BECKâS NORTH AMERICA INC. and BECKâS
NORTH AMERICA INC. d/b/a BECKâS BEER,
FILED
APR lorn2
Defendants.
NEW YORK
COUNTY CLERKâS OFFICE
X
___I_____-____-_____f______l_______f____
Louis B. York, 5.:
This i s a personal injury action arising from an alleged
slip and fall by plaintiff Thomas Issing on a wet
floor at
Madison Square Garden on March 29, 2004, whi e p l a y i n g in a
basketball game sponsored by defendant Beckâs North America Inc.
(Beckâs).
Plaintiffs
depositions
from
for
move
and
Beckâs
an
order
defendant
compelling
Madison
further
Square
Garden
Center, Inc. (MSG), and to compel the production of the names and
addresses of maintenance
vicinity
at
the
time
of
workers
who
may
have
plaintiffâs alleged
been
in the
slip and
fall.
Plaintiffs also s e e k the name of the person who acted as liaison
between MSG and Beckâs, as well as an extension of the time to
file the note of i s s u e .
Plaintiffsâ motion to compel discovery is denied.
First,
plaintiffs have failed to comply with Uniform Rule 202.7 (a) ( 2 ) ,
[* 3]
which provides, in relevant part, that with respect to disclosure
motions,
the moving
party
must
submit
an
"affirmation that
counsel has conferred with counsel f o r the opposing party in a
good faith effort to resolve the issues raised by the motion."
22 NYCRR 202.7 ( a )
AD3d
(2).
In M d y n e a u x v C i t y of New Y O r k ,
406, 407 [lst Dept 2 0 0 9 ] ) ,
Department,
held
that
the
the Appellate Division, First
trial
plaintiffs' CPLR 3126 motion
(64
court
"improperly
granted
in the absence of the required
affirmation by their attorney that the latter h a d conferred with
defendants' attorney in a good faith effort to resolve the issues
raised by the motion."
See 1 4 8 Magnolia, LLC v Merrimack Mut.
F i r e Ins. Co., 62 AD3d 486 (1st Dept 2009); Cerreta v New J e r s e y
Ts. C o r p . , 251 AD2d 190 (1st Dept 1998).
Here,
it is undisputed that plaintiffs' motion
does not
contain an affirmation stating that plaintiff's counsel conferred
with defendants' counsel in a good-faith effort to r e s o l v e the
issues raised by the motion.
Plaintiffs' counsel states only
a letter was sent on September 6, 2011 to defendants,
that
requesting
a
response
to
an
earlier
notice
for
discovery.
Therefore, on this basis alone, the motion must be denied.
Furthermore, plaintiffs
court's
have failed to comply
with this
rules for discovery, as set forth in the preliminary
conference order dated April 30, 2008.
The order requires that,
before making any motion, and as soon as a disclosure problem
arises, t h e party seeking relief is required to contact the part
[* 4]
and arrange for a telephone conference.
Here, plaintiffs' motion papers state that counsel called
the part and was told to make a motion without a conference being
held.
phone
However, counsel's affirmation does not state when this
call
occurred.
Moreover,
although
objected
MSG
to
plaintiffs' demand for discovery in a letter dated October 25,
2011, the instant motion was not made until December 14, 2011.
Thus, plaintiffs have not demonstrated that they sought relief
from
the
court
in
the
manner
required
by
the
preliminary
conference order.
In any event, plaintiffs have not demonstrated that they are
entitled
to
plaintiffs
the
have
discovery
not
sought
demonstrated
on
this
motion.
that
they
are
First,
entitled
to
further depositions.
A party seeking additional depositions must demonstrate that
the witnesses already deposed "had insufficient knowledge, or
were otherwise
likelihood that
inadequate, and that there was
the
person
sought by
a substantial
the plaintiffs
for an
additional deposition possessed information which was material
and necessary to the prosecution of the action."
Trees Union Free School D i s t . ,
92 AD3d 7 0 9
Bentze v I s l a n d
(2d Dept 2 0 1 2 ) .
Here,
on July 8, 2011, plaintiffs deposed William Martino, who is
currently MSG'S Vice President of Building Operations and was the
Director of Building Operations at the time of the alleged slip
and fall.
-
[* 5]
I
Plaintiffs now seek to depose two additional individuals
from MSG, one of whom was an engineer and the other a maintenance
supervisor.
However,
plaintiffs
have
not
demonstrated that
Martinoâs deposition was inadequate or that he had insufficient
knowledge.
Moreover, although plaintiffs suggest that the additional
depositions could lead to discoverable evidence, they have not
demonstrated
a
substantial
individuals they
likelihood
that
seek to depose possess
the
additional
information that is
material and necessary to the prosecution of this action.
With respect to Beckâs, on April 4, 2011, plaintiffs deposed
Ray Curley, a witness produced b y B e c k â s .
that
Plaintiffs contend
Curley stated that Mike Harrington, B e c k â s Executive Vice
President of Marketing would know which individual from MSG acted
as the liaison between Beckâs and MSG.
not pointed to a n y t h i n g
However, plaintiffs have
in Curleyâs deposition which supports
this contention and the transcript does not appear to contain a n y
reference
to
Harrington.
Therefore,
plaintiffs
have
not
demonstrated that they are entitled to depose Harrington.
Plaintiffs also seek to compel MSG to produce the names and
addresses of
vicinity
at
maintenance
the
time
workers
who
may
have
of plaintiffâs alleged
However, this request is vague and overly broad.
been
in
slip and
the
fall.
As such, that
portion of the motion is denied.
Finally, plaintiffs seek the name of the MSG employee who
I
[* 6]
acted
as
liaison between
MSG
and
Beckâs.
MSG
has
already
responded that it conducted a search and does not have such
information and that no current employee acted in that capacity.
However, that response was made by MSGâS attorney, who does not
state that she conducted the search personally.
Therefore,
MSG
must submit an affidavit from a party with knowledge of the
search, stating that the information could not be located and
stating what efforts were made to locate such information.
affidavitâ should
The
include a description of where the relevant
information was likely to be kept; what efforts, if any, were
made to preserve such information; whether such information was
routinely destroyed; and
whether a search was conducted in every
location in such information was l i k e l y to be found.
Irby v C i t y of N e w
York,
71 AD3d
482, 483
See Rivexa-
(1st Dept 2 0 1 0 ) ;
Jackson v C i t y of N e w York, 185 AD2d 768, 769 (1st Dept 1992).
Accordingly, it is
that the motion by plaintiffs Thomas Issing and
ORDERED
Ellen Issing to compel discovery is granted to the extent that,
within twenty d a y s of service of copy of this order with notice
of
entry,
defendant
Madison
Square
Garden
must
serve
an
affidavit, from a party with knowledge of the search, f o r the
name of a n y person who acted as liaison between MSG and Beckâs on
the date of plaintiffâs alleged accident, as set forth above; and
it is further
ORDERED that the time to file the note of issue is extended
[* 7]
to May 25, 2012;
and it is further
ORDERED that the motion is otherwise denied.
ENTER:
FILED
APR 102012
NEW YORK
COUNTY CLERK'S OFFICE
