Issing v Madison Sq. Garden Ctr., Inc.

Annotate this Case

Download PDF

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 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. 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 COUNTYCLERK S 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., BECK S NORTH AMERICA INC. and BECK S NORTH AMERICA INC. d/b/a BECK S BEER, FILED APR lorn2 Defendants. NEW YORK COUNTY CLERK S 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 Beck s North America Inc. (Beck s). Plaintiffs depositions from for move and Beck s 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 plaintiff s 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 Beck s, as well as an extension of the time to file the note of i s s u e . Plaintiffs 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 Martino s 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 Beck s, on April 4, 2011, plaintiffs deposed Ray Curley, a witness produced b y B e c k s . that Plaintiffs contend Curley stated that Mike Harrington, B e c k s Executive Vice President of Marketing would know which individual from MSG acted as the liaison between Beck s and MSG. not pointed to a n y t h i n g However, plaintiffs have in Curley s 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 plaintiff s 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 Beck s. 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 MSG S 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. affidavit 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 Beck s on the date of plaintiff s 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

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.