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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SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
I W .P .
. * Y
MOTION SEQ. NO.
The following papem, numbered 1 to -,
were read on t h i ~
Notice of MotionlOrder to Show Cause - Affidavits
Answerlng A f f l d a v h
IW a ) .
2. CHECK AS APPROPRIATE: ...........................
3. CHECK IF APPROPRIATE:
MOTION I :
GRANTED IN PART
0DO NOT POST 0FIDUCIARY APPOINTMENT 0REFERENCE
PREME COURT OF T E
TATE OF NEW YORK
COUNTY OF NEW YORK: I A S PART 2
_ _ _ _ _ f _ _ _ _ _ _ - _ _ _ _ _ f _ _ _ _ _ _ _ _ l _ _ _ _ _ _ _ _ l _ _ _
THOMAS G. ISSING and ELLEN ISSING,
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,
COUNTY CLERKâS OFFICE
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
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.
Center, Inc. (MSG), and to compel the production of the names and
addresses of maintenance
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.
plaintiffs have failed to comply with Uniform Rule 202.7 (a) ( 2 ) ,
which provides, in relevant part, that with respect to disclosure
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 )
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 ] ) ,
the Appellate Division, First
plaintiffs' CPLR 3126 motion
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).
it is undisputed that plaintiffs' motion
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,
Therefore, on this basis alone, the motion must be denied.
have failed to comply
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
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
However, counsel's affirmation does not state when this
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
In any event, plaintiffs have not demonstrated that they are
A party seeking additional depositions must demonstrate that
the witnesses already deposed "had insufficient knowledge, or
inadequate, and that there was
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 ) .
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
Plaintiffs now seek to depose two additional individuals
from MSG, one of whom was an engineer and the other a maintenance
Martinoâs deposition was inadequate or that he had insufficient
Moreover, although plaintiffs suggest that the additional
depositions could lead to discoverable evidence, they have not
seek to depose possess
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 .
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
demonstrated that they are entitled to depose Harrington.
Plaintiffs also seek to compel MSG to produce the names and
of plaintiffâs alleged
However, this request is vague and overly broad.
As such, that
portion of the motion is denied.
Finally, plaintiffs seek the name of the MSG employee who
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.
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.
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
(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
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
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
to May 25, 2012;
and it is further
ORDERED that the motion is otherwise denied.
COUNTY CLERK'S OFFICE