Telford v City of New York

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Telford v City of New York 2012 NY Slip Op 31661(U) June 19, 2012 Supreme Court, New York County Docket Number: 113994/08 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. [* 1] T . SUPREME COURT OF THE STATE OF NEW YORK c NEW YORK COUNTY MICHAEL D. STALLMAN PRESENT: Hon. PART 21 Justice INDEX NO. PATRICIA TELFORD, Plalntlff, 113994/08 MOTION DATE 3/29/12 MOTION SEQ. NO. -v- OQI THE CITY OF NEW YORK, NEW YORK CITY TRANSIT AUTHORITY, CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., NlCO ASPHALT PAVING, INC. and TROCOM CONSTRUCTION CORP., Defendants. The followlng papers, numbered 1 to Notice of Motion- Afflmation 6 were read on thlb motion to strlke NLLY YORK COUv&&&ERKS QJ$CE - Exhlbih A-K Affirmation In Opposltlon; Afflrmatlon In Opposltlon Replylng Afflrmatlon - Exhlblb A-C - Exhiblta INo(@INdW. 3: 4 5; 6 Upon the foregoing papers, it is ordered that plaintiff's motion to strike the answers of defendants City of New York and New York City TransitAuthority, or in the alternative, for an order to compel, i partially granted as follows: s I) Within 90 days, the City must produce Walter Bruno for a deposition, if currently employed by the City. If Walter Bruno is no longer employed by the City, then the City must produce an inspectorfrom the HlQA unit of the Departmentof Transportation. The purposeof the deposition is to ascertainthe existence of any documents that an inspector would be requiredto complete in connectionwith an inspection,includingthe inspectionsindicated on the CASH printouts markedas ExhibitM ; detenninewhether to any of those documentswould contain informationthat would not be reflected on the CASH printouts; to determine whether those documentswould be kept in the ordinary course o businessafter f the inspection, and the procedures for maintaining these documents (i.e., the locationwhether they are likelyto be kept o r a document retention policy). . (Continued.. ) Page 1 of 7 [* 2] Telford v City of New York, Index No. I I3994108 2) Within 90 days, the New York City Transit Authority shall produce the documents demanded in items I, and I O and 6,9, items 4 and 5 (as limited by NYCTA) of plaintiff's supplemental noticefor supplementaldiscoveryand inspectiondated December 23,2010; 3) Upon I O business days' notice, the New York City Transit Authority shall make available for inspection and copying the originals of the documents annexed as Exhibit J to the moving papers ; and the motion is otherwise denied. Inthis action, plaintiffalleges that, on July 30,2007, at approximately 7:2O a.m., she was a passenger on the M66 bus, which had stopped past its designated bus stop, In the middle of East 67fh Street in Manhattan. After exitingthe bus, plaintiff allegedly trippedand fell while crossing East 6p Street (near the northwest comer of East67"'Streetand Lexington Avenue) due to a roadway defect. Accordingto NYCTA, the accidentwas unreported, and that plaintiff did not get the bus number. Plaintiff clalms that she regularly took the M66 bus, and that the M66 bus driver on the date of her accidentwas not the usual bus driver. Plaintiff moves for an order striking the answers of defendants City of New York and NYCTA, due to their alleged failure to provide discovery demanded in two supplemental notices for discovery and inspectiondated October 2,2009 and June 2,201 0 served upon the City, and a supplemental notice for discovery and inspection dated December23,2010 sewed upon NYCTA. Alternatively, plaintiffseeks an order compelling defendants to provide respmsive documents. Generally speaking, the first supplemental notice for discovery and inspectionserved upon the City sought documents pertaining to the repair, maintenance, inspection, and construction o the roadway where plaintiff f allegedly fell, for the two year periodsubsequent to the accident. (Schachner Affirm., Ex D.) In its response, the City objected generally to all the demands (Continued. Page 2 of 7 . .) [* 3] h Telford v City o f New York, Index No. 113994/08 as not material and necessary, and objected specifically to each demand as overly broad and unduly burdensome. (M,E x E.) Plaintiffargues that the postaccident repair recordsare discoverablefor the purpose of establishingthat a particular condition was dangerous, citing Lestingi v City of New York(209 AD2d 384 [Zd Dept 19941.) The City s objectionsto plaintiff s first supplemental noticefor discovery and inspectionare sustained. Under limited circumstances, evidence of postaccident repair is discoverable to show that a particular condition was dangerous. (See e.g. Albino vNew York City Hous. Aufh., 52ADSd 321 [lst Dept 2008][repairs of hot water system]; Longo vArmor Hevator, Co., Inc., 278 AD2d 127 [Ist Dept 2000][elevator repair]; Lestingi v City ofNew York, 209 AD2d 384 [2d Dept 1994) [traffic signal repairs]; ,Kaplan v Elny, 209 AD2d 248 [Id 1994) [elevator repair].) However, those casesare distinguishable Dept because in those cases the origin of the allegedly dangerouscondition might be inthe nature o a mechanicaldefect, which might only come to light afterthe f device, machine, or apparatus is repaired post-accident. Inaddition, some of the categories of discovery sought, such as inspectionreports and inspection records, could not be construed as being limlted only to repalr records. The second supplemental noticefor discovery and inspectionsewed upon the City sought all records regarding HighwayInspectionand QualityAssurance inspection recordscarried out by the HlQA unit of the Department of Transportation, regardingthe roadway at the place of Occurrence atlnear East 67* Street and Lexington Avenue and as noted in Exhibit#M markedat the deposition of Abraham Lopez on April 21, 2010 for two (2) years prior to the date of the accident to wit, July 30, 2005 to July 29, 2007. (SchachnerAffirm., Ex F.) Exhibit#4 appears to be a series of printouts from the CASH CentralAccess System of HIQA, which containvarious data fields, such as Permit Number, Work Start Date Work End Date , Inspection Date Inspection Type , and Inspection Result. (see /d.) To the extent that the City argues that plaintiffs demand did not identify the HlQA records with reasonable particularity because the request called (Continued, Page 3 of 7 . .) [* 4] .. Telford v City o f New York, Index No. I 13994/08 for all records, this argument is unpersuasive. (Mendelowifz vXerox Cop., 169 AD2d 300,305 [lst Dept 19911.) Plaintiff referred to the deposition of Abraham Lopez and purportedlyannexedthe CASH printouts markedas Exhibit #4. Indeed, the City itself claims that the HlQA records called for at Lopez s depositionwere inspection recordsassociated with a HlQA inspection where Walter Bruno, an inspector, issued a CorrectiveAction Request(CAR) for permit number M012007155113. The CASH printoutfor that permit number apparently indicatesa Work Start Date: 6/9/2007, and WorkEnd Date: 9/9/07 with Remarks temp trench overdue for final. (Schachner Affirm., Ex F.) The City s contentionthat all HlQA inspection records were previously provided in the City s preliminary conference response appears to be a misunderstandingof the demand. Plaintiff s counselwas already providedwith the CASH printouts. Itappears that, at Lopez s deposition, plaintiffs counsel believedthat the informatronon the CASH printouts was taken from another documentthat Bruno himselffilled ouf which plaintiffs counsel referredto as the actual inspection report. (See id.) From the excerpt of Lopez s deposition, Lopezdid not testify that Bruno s had made any written inspectIan report, or that HlQAwould have maintainedsuch a document Lopeztestified, I don t know what their procedures are. ( I d ) Under these circumstances, the Court agrees with the City that Bruno should appear for a deposition beforeit is compelledto comply with plaintiffs document demand. Lacking knowledgeof the existence of specific documents, etc., proper procedure requires that the party seeking discovery and inspection pursuant to CPLR 3120 initially make use of the deposition and related procedures provlded by the CPLR to ascertainthe existence of such documents in order that they may be designated with specificity in a CPLR 3120 notice. (Fascaldi v Fascaldi 209 A.D.2d 578,579 [2d Dept 19943.) Bruno should appear for a deposition to answer questions about, among other things, what forms or documents he would fill out when an inspector performs the inspections indicatedon the CASH printouts, whether any of those documents would contain information that would not be reflected on the CASH printouts, and whether those documents are kept after the inspection. (Continued. ) . Page 4 of 7 [* 5] Te/ford v City of New York, Index No. 113994/08 Therefore, plaintiff has not demonstratedthat the City s failure to produce the HlQA records demandedwas wilful or contumacious, so as to warrant the drastic remedy of striking the City s answer. Turning to NYCTA, plainitbewed a supplemental notice for discovery and inspection dated December23,201 0, which requested 13 categories of documents. (SchachnerAffirm., Ex H.) For four of those categories (items, 1, 6,9, and I O ) , NYCTA stated that it would conduct a search; for two others (items4 and 5), NYCTA narrowedthe discovery requestto a shorter time frame and stated that it would also search for those documents. NYCTA objectedto all the other document demands. NYCTA properly narrowedthe time period in items 4 and 5 to the time period of 7:15 a.m. to 7:45 a.m on July 30,2007 (5 minutes before and 25 minutes after the time of plaintiffs alleged accident). Items4 and 5 sought records regarding time point checking, Le., notations about whether a particular bus had not reacheda checkpoint bya certaintime. (SeeSchachner Affirm., Ex H [Rossiter EBT], at 25.) Plaintifftestified at herstatutory hearing that the bus that dropped her off at East 67fh Street and LexingtonAvenue remainedfor what seemed likefive minutes. (Mulvenna Opp. Affirm., Ex B, at 26.) To the extent that plaintiff believes thatthe M66 bus she was on would have missed a time checkpoint,the recordsfor the period of 7:15 a.m. to 7:45 a.m. might lead to admissible evidence of the bus number of the M66 bus in which plaintiff was a passenger. Given plaintiff s own statutory hearing testimony, the time point checking records that plaintiff requested-from 7:OO a.m. - 9:OO a.m- was overly broad. NYCTAadmitsthat it did not produce the documents that it agreed to produce, but claims that it attempted to provide the outstanding discovery. (Mulvenna Opp. Affirm. 7 IO.) Therefore, NYCTA is directed to provide the discovery demanded in items 1,6,9, and I O , and items 4 and 5 (as limited), within 90 days. Striking NYCTA s answer is notwarrantedbecause plaintiffhas not demonstratedthat NYCTA had a patternof nonxompliance with prior court orders. NYCTA apparently provided plaintiffwith the names of five bus operators on the M66 route, whose westbound buseswere inthevicinity of York Avenue & East 6p Street on the date of plaintiffs alleged accident, between 7:OO a.m. (Continued.. ) . Page 5 of 7 [* 6] L 4 Telford v City o f New York, Index No. I 13994/08 and 7:30 a.m. (See Mulvenna Opp. Affirm., Ex C.) Plaintiff also received physical descriptions of three of the bus operators. (Id.) The Court agrees with NYCTAthatthe discovery demands for recordsfor theweekofJuly23,201OtoJuly27,201O(items2,11,12,and 13)areirrelevant. Plaintiff argues that the records from the week before plaintiffs alleged accidentwould be used as a comparisonwith the names of the drivers on the date of plaintiffs accident. However, the Court disagrees that the discovery sought would be reasonablycalculatedto lead to admissibleevidence as to the identity of the bus operator on the date and time of plaintiff's accident. Assuming that the driver of the M66 bus that plaintiff boardedwas not the bus operator plaintiffsaw on previousoccasions when she boardedthe bus, it does not follow that this bus operatorwould not have been assignedto the M66 bus route In the week before plaintiff's accident. Item 3, which demanded any/all complaints regarding the bus stop locatedat East 6pStreet and LexingtonAvenue for a two month period prior to the date of plaintiffs accident, was palpably improperon its face. As NYCTA Indicated, "[tlhe duty to keep public sidewalks and roadways, includingthose adjacentto bus stops, in a reasonablysafe conditionand to repair any defecb falls upon the municipality." (Cioe vPetroceIIEIec. Co., Inc., 33 AD3d 377, 378 [lst Dept 2006][emphasis supplied]; accord Cabrera vCifyofNew Yo&, 45AD3d 455 [ l s t Dept 20071.) Although it is possible that bus passengers might complain to NYCTAaboutroadway conditions around the bus stop, it would be unduly burdensomefor NYCTA to conduct a search for complaints about conditions for which it had no duty to repair. NYCTAs objection to item 7 as overly broad and unduly burdensome is sustained. Item 7 sought duplicate copies and/or transcripts of all audio records made from the M66 bus to the command center for the timespan of 7:OO a.m. to 7:30 a.m. on July 30,2007. However, plaintiff does not disputethat her accident was not reportedto the bus driver. Plaintiff does not explain in her motion papers why the audio recordingsof such comrnunlcationsfrom all the M66 bus operators during this time frame would be reasonably calculatedto lead to any admissible evidence as to the identity of the bus operator, or bear on the issueof the whether the bus operator providedplaintiff with a safe place from which to alight from the bus. (Continued. Page 6 of 7 ..) [* 7] Te/ford v City of New York, Index No. 113994/08 In responseto item 8, which sought legiblecopies of certaindocuments which contain handwriting (seeschachner Affirm., Ex J.), NYCTA responded that these were only copies in its possession. To the extent that NYCTA is stating that it cannot reproduce more legible copies from the original documents, then NYCTA must make the original documents available for inspection and copying upon I O business days notice. - Copies to counsel. , J.S.C. Dated: New York, Ndw York 1. Check one: ................................................................ 2. Check If approprlate:............................ MOTION IS: 3. Check If approprlate:................................................ 0CASE DISPOSED NON-FINAL DISPOSITION [7 GRANTED c DENIED GRANTED IN PART [7 OTHER ] 0SETTLEORDER 0SUBMIT ORDER [7 DO NOT POST 0FIDUCIARY APPOINTMENT 0REFERENCE Page 7 of 7

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