Velesaca v Metropolitan Transp. Auth.

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Velesaca v Metropolitan Transp. Auth. 2012 NY Slip Op 31144(U) April 23, 2012 Sup Ct, NY County Docket Number: 106644/11 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. SCANNED ON412712012 [* 1] 5 v SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Hon. MICHAEL D. STALLMAN PART 21 Justice JULIO A. VELESACA and TERESA VELESACA, Notlce of Motlon- Afflnnatlon - Afflmation- Exhlblta A-F Afflrmatlon In Oppoaltlon - Exhlblt A ReplylngAfflrmatlon 0 W ? 2 P u1 E E ! INDEX NO. fWW YORK Cr>UNTY&MWSS OFRBF [No(a). - Exhlblts 106844/11 4 IW s ) . Upon the foregoing papers, it is ordered that plaintiff's motlon to strike defendants' answer, or Inthe alternative, to compel defendants to produce documents demanded in notices for discovery and inspection Is granted in part, only to the extent that, within 45 days, defendants shall produce: A . I) results of the urinalysis test administered to Ested on the January 28,201I If defendants are not able to produce the results . by that time, defendants must provide an amdavit of search for the (Continued.. .) Page 1 of 6 [* 2] &- Velesaca v Metropolitan Tramp. Aufh., Index No. IO6644/201I - .. occurrence. If so, defendants shall submit to the Court for in camera review unredacted copies of any such workers compensation or disabilityapplication in their possession, with Bates-stamped pagination; and the motion is otherwise denied. In this action, plaintiff alleges that, on January 28,201 Ia subway train , owned and operated by defendants ran over the plaintiff, severing both of his legs above the knee. Anthony Ested is the alleged motorman of that subway train. Plaintiffs move to strike defendants answer due to their alleged failure to produce certain operations manuals pertainingto motormenand conductors, and certain safety rules and protocols, as demanded in plaintiffs notice for discovery and inspection dated July 19,201I(BlauAffirm., Ex B.) Plaintiff also . asserts that defendants refused to comply with plaintiffs second noticefor discovery and inspection dated November I O , 201Ias to items I2,3, 7. , , and (ld., Ex C.) ._ The branch of plaintiffs motion seeking tostrlke the answer is denled. The drastic remedy of striking an answer is inappropriate, absent a clear showing that defendant[s ] failure to comply wlth discovery demands was willful or contumacious. (Daimlerchryslerlns.Co. v Seck, 82 AD3d 581,582 [Ist Dept 201I].) Here, defendants complied with their obligation to produce the Operations manuals setting forth rules, regulations and protocols for Motormen and Conductors and the Safety rules, regulations and protocols applied when persons and/or objects are believedto be physically present on the subway tracks by making these documents available to plaintiffs counsel for inspection and for copying upon appointment. (See CPLR 3120 [I] [I].) In addition, defendants appear to have complied with item 7 of plaintiffs second notice for discovery and inspection, which sought all records pertainingto work related injuriesclaimed by Anthony Ested, occurring on or about January 28,201 I According to defendants counsel, a request for . medicalexam form and the results were sent to plaintiff on or about January 13, 2011. The undersigned made several requests to obtain this document from (Continued.. ,) Page2 of 6 [* 3] t c Velesaca v Metropolitan Tramp. Auth., Index No. 106644/201I our medical unit. . . . This is the only medlcal record for train operator in our file in connection with the above named Incident. (Hamler Opp. Affirm. 7.) Although plaintiffs argue that they are entitled to a redacted copy of any worker s compensation and/or disability application relating to the subject occurrence, plaintiffs have presented no evidence indicating that Ested applied for workers compensation or disability benefits. However, within 45 days, defendants shall disclose in an affirmation whether or not Ested applied for workers compensation or disablllty benefits relating to the subject occurrence. If so, defendants shall submit to the Court for ln camera review unredacted copies of any such workers compensation or disability application in their possession, with Bates-stamped pagination. . . . Item 3 of plaintiffs second notice for discovery and inspection demanded copies of reports of all medicallsclentific tests performed upon Anthony Ested (#259003) on January 28, 2011 Includlng, but not limited to, the breathalyzer, urinalysis and blood tests. According to an incident report, Ested was taken to the Rail Control Center and was subjected to Incident testing as per The Rail Control Center Directive 01-11. (Blau Affirm., Ex G.) The report states that a breathalyzerwas adminlstered to Ested at 0437 hours, and the same technician administered a urinalysis to Ested. (Id.)Dlrective 01-11 appears to require drug and alcohol testing for employees involved In major incidentslaccidents or -. serious violations. (Blau Affirm., Ex H.) Defendants counsel responded, Have a made a request for EAT test results will forward under separate cover. (Hamler Opp. Affirm., Ex A,) It appears that plaintiff was provided a one page document which states, ABT Less Than 0.020. (Blau Affirm., Ex I.) Defendants response does not mention any urinalysis results. However, plaintiff has not demonstrated that defendants failure to produce Ested s urinalysis results was willful or contumacious. Within 45 days, defendants are directed to produce the results of the urinalysis test administered to Ested, as referenced in the incident report. If defendants are not able to produce the results by that tlme, defendants must provide an affidavit of search for the urinalysis results, detailing the means and (Continued.. .) Page 3 of 6 [* 4] Velesaca v Mefropolitan Transp. Auth., Index No. 106644/201I methods of the search that was conducted for the urinalysis results. (See Jackson v City of New York, 185 AD2d 768,770 [lst Dept 19921.) Although plaintiffs counsel states that no disclosure was made as to any blood tests or a tox screen taken on the date of the occurrence, nothing in Directive 01-11 or the incident report indicates that Ested should have undergone blood testing or a tox screen separate from a urinalysis. As to the remaining items of plaintiffs second notice for discovery and inspection, defendants objected to thelr production. Insofar as plaintiffs have not sought a ruling on those objections until this motion, it cannot be said that defendants refusal to provide these items of discovery was willful or contumacI ous. -_ Defendants objection to all medical records and for related physical examinations for Anthony Ested # 259003 as overly broad Is sustained. This demand is separate from the demand for the tests adminlstered to Ested on the date of the incident. Ptaintiffs counsel has not explained how these records in defendants possession, custody, or control either are relevant, or reasonably calculated to lead to admissible evidence as to the Issues of this action. Item 1of plalntlffs second notice for discovery and inspection seeks the Complete personnel and work file malntained for Anthony Esteve #259003. Defendants objection to the personnel file as non discoverable is overruled. Karoon v New York CCty Transit Authorify (241 AD2d 323 [lst Dept 199q) does not stand for the proposition that an employee s personnel file is not dlscoverable. In Karoon,the Appellate Division, First Department reversed the decision of the motion court to grant the plaintlff additional discovery of any records of earlier accidents of a bus driver, and to deny defendants cross motion for summary judgment dismissing causes of action for negligent hiring, retention, and training of the bus driver. The Appellate Court ruled that defendants were entitled to summary judgment dismissing plaintiffs claims of negligent hiring, retention and training, reasoning (Continued.. .) Page4of 6 [* 5] Velesaca v Metropo/itan Transp. Aufh., Index No. 106644/201I Generally, where an employee i acting within thescope of his or s her employment, thereby rendering the employer liable for any damages caused by the employee s negligenceunder a theory of respondeatsuperior, no claim may proceedagainst the employer for negligent hiring or retention. . . While an exception exists to this general principle where the injured plaintiff is seeking punitive damages from the employer basedon alleged gross negligencein the hiring or retention of the employee, that exception is inapposite here. - (Karoon, 241 AD2d at 325 [internal citations omitted].) The Appellate Division --did not state why the motion court s decision granting plaintiff s motionfor additional dlscovery was reversed. However, glven the context, one would conclude that the additional discovery sought in Karoonwas relevant to the causes of action that were dismissed on appeal. . Here, plaintiffs seek discovery of Ested s personnel file to obtain any statements concernlng the happeningof the accident, which the Court agrees with plaintiffs are relevant to this action. Therefore, defendantsare directedto produce any statements from Ested in his personnel file about this alleged accident Defendants are also directed to produce any documents in Ested s personnel file as to blood alcohol or drug test results from any exams administeredto Ested on the date of the alleged accident Finally, defendants are directed to produce any documents in his personnel file concerning disciplinary action taken against Ested, if any, based on his actions on the date of the alleged accident. However, the Court disagrees with plaintiffs counsel that disciplinary and civilian complaint records are perse relevant. Plaintiffs reliance on police misconduct cases i misplaced, because those cases involved Civil s Rights Laws 50-a, which does not applyto Ested. ButlervCityofNew York ( I5 Misc 36 I [A]), which plaintiffs cited, involved a cause of action under 134 42 USC 1983. Federallaw, not state law, governs the scope of disclosure with respect to that cause of action, and in such civil rights cases, the scope of discovery under federal law is much more liberal. (RamosvCifyofNew York, 285 AD2d 284 [lst Dept 20011; Mann vAlvarez, 242 AD2d 318,320 [2d Dept 19971.) (Continued.. .) Page 5 of 6 [* 6] Velesaca w Metropolltan Tramp. Aufh., Index No. IO66441201I Finally, the branch of plaintiffs' motion for an order compelling plaintiffs to produce a redacted copy of any report of an examination of Ested by a psychiatrist or psychologists, for the purpose of evaluating Ested's fitness for duty, is denied, without prejudice to serving a formal demand. An order to compel is not warranted becausethe discoverysoughtwas not contained in a prior noticefor discovery and inspection. (See CPLR 3124 [a party may move to compel if a person fails to comply with any demand.) Nothing in the record indicates that his employer required Ested to submit to such exams, or that these exams were performed on Ested. Copies to counsel. .. - Dated: NeJ[*3 /I./ ,J.S.C. rk, New York I.Check one: ................................................................ 2. Check If spproprlate:............................ MOTION IS: 3. Cheek If approprlate:................................................ CASE DISPOSED GRANTED DENIED 0 NON-FINAL DISPOSITION GRANTED IN PART OTHER 0SE'ITLEORDER 0SUBMIT ORDER 0DO NOT POST 0FIDUCIARY APPOINTMENT 0REFERENCE HON. MICHAEL D. STALLMAN .. FILED APR 27 2012 NEW YORK COUNTY CLERKS OFFICE Page 6 of 6

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