Lawrence v CBS Lines, Inc.

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Lawrence v CBS Lines, Inc. 2012 NY Slip Op 32492(U) September 25, 2012 Supreme Court, Suffolk County Docket Number: 06-33015 Judge: John J.J. Jones Jr 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] EX N ( I . 06-33015 CAL No. 11-019350T SUPREME COURT - STATE OF NEW 'YORK I.A.S. PART 10 - SUFFOLKCOUFTY PRESENT: Hon. MOTION >ATE 2-22-12 (#008) 4-6-12 (#009 & # 0 1 m MOTION >ATE MOTION >ATE 4-25-12 (#011) 4-25-12 (#008, #010 & #011) ADJ. DAT E ADJ. DATE 5-23-12 (#009) # 010 - MD Mot. Seq. , [ 008 - MD # 011 - MD # 009 - MD JOHN J.J. JONES, JR. Justice of the Supreme Court ............................................................... X NANCY LAWRENCE, Plaintiff, - ZAKLUKI EWICZ PUZO & MORRISSEY Attorney fc jr Defendants CBS Lines, Inc. & County of Suffolk 2701 Sunrise Highway, P.O. Box 389 Islip Terrac e, New York 11752 against - CBS LINES, INC., COUNTY OF SUFFOLK and NOGAN MFG., INC., MARTIN JOSEPH COLEMAN, ESQ. Attorney fc lr Plaintiff 100 Cross\ #Jays Park Drive West, Suite 4 12 Woodbury New York 11797 : Defendants. : ............................................................... X SAWYERS, ESQ. ANDREA 13. Attorney fc ir Defendant Hogan MFG, Inc. 3 Huntingt In Quadrangle, P.O. Box 9028 Melville, F ew York 1 1747 Upon the following papers numbered 1 to 57 read on this motion - STRA/STRA/RRRWCOMPEL ; Notice of Motion/ Order to Show Cause and supporting papers 1 - 13. 14 - 20,2 1 - 27,28 - 35 -; Notice of Cross Motion and supporting papers -; Answering Affidavits and supporting papers 36 - 4 1,42 - 47,48 - 53 ; I teplying Affidavits and supporting papers 54 - S S , S 6 - 57 ;- Other -;1 ( ) it is, ORDERED that the motion (# 008) by defendant Hogan Mfg., lnc., the motions (# 009 & 010) by defendants County of Suffolk and CBS Lines Inc., and the motion (# 0 1) by plaintiff are consolidated lor the purposes of this determination; and it is ORDERED that the motion by defendants County of Suffolk aiid CBS Lines Inc. for an order compelling plaintiff to respond to its demand for disclosure of her expert witness information is denied; and it is [* 2] Lawrence v CBS Lines Index No. 06-33015 Page 2 ORDERED that the motion by defendants County of Suffolk a id CBS Lines Inc. for leave to renew and/or reargue a prior motion by the County of Suffolk for an 01 lder compelling plaintiff to appear for a further deposition, which was determined by order of this Court c ated December 14, 20 1 1, is granted to the extent set forth herein, and is otherwise denied; and it is c ORDERED that the motion by defendant Hogan Mfg., Inc. anc the motion by plaintiff for the imposition of sanctions against defendants CBS Lines Inc. and the Comty of Suffolk based upon the alleged spoliation of key evidence in the action are denied. This is an action to recover damages for injuries allegedly sust: ined by plaintiff Nancy Lawrence on September 6, 2005 while she was attempting to board a transit bus ( iwned by defendant County of Suffolk and operated by defendant CBS Lines, Inc. Plaintiff, who is di ;abled and rides in a wheel chair, allegedly was injured when the curbside ramp barrier attached to the bl is s mechanical lift failed to stop in its barrier position and rotated backward on to her feet. Following 1 er accident, plaintiff filed a notice of claim against Suffolk dated October 12,2005, which asserts, among other things, that she sustained injuries as a result of a malfunction in the bus s mechanical lift. Plaint Iff also commenced an action in the United States District Court for the Eastern District of New York, iiLamingSuffolk and CBS Lines (hereinafter collectively known as Suffolk ) as the sole defendants in the action. Following the commencement of the federal action, Suffolk allegedly conducted its c wn inspection of the alleged defective mechanical lift and sold it, together with the bus, on June 24. 2006. Shortly thereafter, plaintiff commenced the instant action against Suffolk and defendant Hogan M Ig., Inc. ( Hogan ), the alleged manufacturer of the subject forklift. Suffolkjoined issue in the instant action and asserted a cross claim against Hogan for contribution and/or common law indemnification. Hogan then joined ssue, and asserted identical cross claims against Suffolk. Following joinder, the parties engaged in disc( wery, including, as relevant tal this determination, the taking of plaintiffs deposition testimony on Januay 28, 2008 and February 1, 20 I1. On September 16, 20 1 1, Suffolk moved this court for an order compel ing plaintiff to appear for another deposition. The note of issue and certificate of readiness were filed by plaintiff on September 27,20 1 1. By ordcr dated December 14, 201 1, this Court denied Suffolk s motion on the basis that it entered a ]prior stipulation warranting that discovery was complete and failed to subm t copies of any medical records or reports tending to support its claim that plaintiff sustained subsequent njuries to her feet following the accident that is the subject of this action. Suffolk now moves to renew and/or reargue its prior motion se :king to compel plaintiff to appear for further deposition, arguing, inter alia, that its failure to include cop es of medical records with its initial moving papers allegedly proving that plaintiff sustained subseqiient injuries to her feet was due to inadvertent law office error. By way of a separate motion, Suffolk alsc I seeks to compel plaintiff to respond to its January 2007 demand for expert witness information. S iffolk asserts that plaintiff failed to rcspond to its disclosure request despite alleging additional injuries swtained to her stomach as a result of the prolonged use of pain medication. In opposition, plaintiff argues, i nter alia, that Suffolk s motion to 1 renew must be denied, as it was in possession of the medical records c mcerning alleged subsequent injuries to her left foot for two years prior to the time of the original m ition, and that such records indicate that she sustained little, if any, injuries that were attributable t ) the alleged accident which [* 3] Lawrence v CBS Lines Index No. 06-33015 Page 3 occurred in February 2007. Thc motion by Suffolk for an order compelling plaintiff to comlzJlywith outstanding demands for disclosure is denied, without prejudice, as Suffolk s motion was not sqported by an affirmation of good faith setting forth that it conferred with plaintiffs counsel to resolve th :disclosure issues that are the subject of the motion (see Cliervin v Macura, 28 AD3d 600, 813 NYS 2d 746 [2d Dept 20061; Barnes v NYNEX, Inc., 274 AD2d 368, 71 1 NYS2d 893 [2d Dept 20001; Mato: v Mira Realty Mgt. Corp., 240 AD2d 214,658 NYS2d 880 [lst Dept 19971; Romero v Korn, 236 AD 2d 598,654 NYS2d 38 [2d Dept 19971). The Court notes that CPLR 3 101 (d)(l) does not obligate a pa ty to retain an expert by a specific time or mandate that a party be precluded from offering expert testimo iy at trial based on noncompliance with such statute unless there is evidence of intentional or willful fail1 ire to disclose and a showing of prejudice by the opposing party (Aversa v Taubes, 194 AD2d 580, 58 2, 598 NYS2d 801 [2d Dept 19931; see Hoberg v SIzree Graneslz, LLC, 85 AD3d 965, 926 NYS2d 578 [2d Dept 201 11; Ocampo v Pagan, 68 AD3d 1077,892 NYS2d 452 [2d Dept 20091). With regard to the motion by Suffolk for renewal and/or reargu ment of its prior motion to compel plaintiff to appear for further deposition, a motion for leave to renew ;hall be based upon new facts not offered on the prior motion that would change the prior determination (CPLR 222 I [e] [2]) and shall contain reasonable justification for the failure to present such facts (Rlnmirezv. Khan, 60 AD3d 748, 748, 874 NYS2d 257 [2d Dept 20091; see State Farm Fire and Cas. v Parking Systems Valet Service, 85 AD3d 761, 926 NYS2d 541 [2d Dept 201 11). What constitutes a ri tasonable justification is within the Court s discretion (see Heaven v McGowan, 40 AD3d 583, 586, 8 15 NYS2d 641 [2d Dept 20071). Furthermore, it has been recognized that accepting law office failure a: a reasonable justification for a movant s failure to include the alleged new or additional facts with its prior motion is a sound use of the Court s discretion (see State Farm Fire and Cas. v Parking Systems 1 alet Service, supra;Nwnuwa v Mamos, 53 AD3d 646,649,862 NYS2d 110 [2d Dept 20081). Although Suffolk demonstrated that its failure to include medic a1 records and reports tending to show that plaintiff sustained subsequent injuries to her left foot with it ; previous motion was due to inadvertent law office failure (see Gordon v Boyd, 96 AD3d 719,945 \IYS2d 741[2d Dept 20121; Nwauwa v Mamos, supra;State Fami Fire and Cas. v Parking Syste 112s Valet Service, supra),it failed to demonstrate that unusual or unanticipated circumstances developed which would warrant further discovery under the circumstances of this case (see Uticn Mut. Ins. CL. v P.M.A. Corp., supra;Audiovox Curp. v Benyrrrnini, supra;Marks v Morrison, 275 AD2d 1027,714 7 IYS2d I67 [4th Dept 20001; Sims v Ferraccio, 265 AD2d 805, 695 NYS2d 641 14th Dept 19991). Signi icantly, Suffolk does not dispute that plaintiff previously disclosed medical records from the Stony Brol )k University Medical Center in September 2008, which detail the injuries and treatment she received I {hen a car allegedly ran over her left foot in February 2007. Thus, Suffolk s assertion that it became av are of the alleged accident and possible additional injuries to plaintiffs left foot only after her further deposition was conducted on February I , 20 1 1 is belied by its earlier possession of medical records Nhicli placed it on notice of the occurrence of the accident and the medical treatment plaintiff received as a result of said accident. A lack of diligence in seeking discovery does not constitute a special or ;In extraordinary circumstance for the purposes of post-note discovery (Laudico v Sears, Roebuck & Co., 125 AD2d 960,96 1 , 510 NYS2d 787 [4th Dept 19861; see Eskenazi v Mackoul, 92 AD3d 828,939 NY S2d 484 [2d Dept 20121). [* 4] Lawrence v CBS Lines Index No. 06-33015 Page 4 Moreover, the physician s report included in Suffolk s motion specific,illy states that plaintiffs left foot was not fractured, and notes no new additional or aggravating injuries 1 o her feet that are attributable to the subsequent accident. Accordingly, the motion by Suffolk seeking I jave to renew its motion for an order compelling plaintiff to appear for a further deposition hearing is ( lenied. Hogan moves pursuant to CPLR 3 126 for an order striking Suf olk s answer and cross claims based upon its alleged spoliation ofkey evidence in the action, namely the bus and its mechanical lift. Hogan argues that such sanctions are appropriate under the circumstanl :es of this case, since Suffolk lhad notice of the action and failed to preserve the mechanical lift, take phor ographs of it, or retain experts, to inspect and document the condition of the device before it sold the bus and lift. Plaintiff moves for the same relief as Hogan and adopts its arguments. Alternatively, plaintiff requests, should her application to strike Suffolk s pleadings be denied, that she be provided with a missiiig evidence instruction at trial. Suffolk opposes both motions, arguing that neither plaintiff nor Hogan sought an inspection of the bus or requested that it be preserved, and that they failed to demonstrate that t lie absence of the bus will prevent them from prosecuting or defending the action. Suffolk further avers t iat its mechanics were deposeld, and that it provided copies of a post-accident inspection report and the maintenance records for the subject bus and lift during the discovery phase of the action. The striking of a pleading for spoliation of evidence is justified only when a party aIters, destroys, or loses possession of key physical evidence before it can be examined by its opponents experts such that its opponents are prejudicially bereft of appropriate means to con ront a claim with incisive evidence (New York Cent. Mut. Fire Ins. Co. v Turnerson s Elec.. 280 AD2d 652,653,721 NYS2d 92 [2d Dept 20011, quoting Di Domenico v C & S Aeromntik Suppliev, 252 AD2d 41, 53, 682 NYS2d 452 [2d Dept 19981; see Klein v Ford Motor Co., 303 AD2d 376,756 NYS2d 271 [2d Dept 20031). While the best proof of a defective product is the product itself, both 1 he existence of a product defect as well as the identity of the manufacturer of the product are issues of fac capable of proof by circumstantial evidence (Otis v Bnusclz & Lomb, 143 AD2d 649, 65C, 532 NYS2d 933 [2d Dept 19881; see Henley v Firestone Tire & Rubber Co., 87 NY2d 596, 640 NYS2( 860 [1996]). Further, in cases of alleged design defects, there is growing recognition that the loss of the specific instrumentality that allegedly caused the plaintiffs injuries is not automatically prejudicial to the manufacturer because tlhe defect will be exhibited by other products of the same design (see Dnyd v Coinmnclz Indus. Co., 284 AD2d 206, 727 NYS2d 412 [lst Dept 20011; see Kirklnnd v New Yorl City Hous. Autlz., 236 AD2d 170. 175, 666 NYS2d 609 [lst Dept 19971). [Tlhe striking of a pleading is a drastic sanction (Klein v FordMotor Co., sz/pra at 376, 756 NYS2d 271), and courts are reluc ant to dismiss a pleading [based upon spoliation of evidence] absent willful or contumacious conduct [: o prejudicial that] dismissal is, necessary as a matter of elementary fairness (Fnvish v Tepler, 294 f ,D2d 396, 396, 741 NYS2d 9 10 [2d Dept 20021, quoting Puccia v Farfey, 261 AD2d 83, 85, 699 NYS !d 576 [3d Dept 19991; see Mylonas v Tow11of Brookhaven, 305 AD2d 561, 759 NYS2d 752 [2d Dept 20031). Where the evidlmce lost is not central to the case or its destruction does not cause severe pr :judice, a lesser sanction may be imposed (Klein v FordMotor Co., supra at 376, 756 NYS2d 271; see Wylonas v Town of Brooklzaven, s u p u at 752, 759 NYS2d 752). Considering the underlying claim in the instant action rests, in arge part, on the existence of a defectively designed mechanical lift and Suffolk has disclosed mainter ance and post-accident reports [* 5] Lawrence v CBS Lines Index No. 06-33015 Page 5 relating to the sub-ject lift, neither plaintiff nor Hogan have demonstratc d that the sale of the bus left tlhem prejudicially bereft of any means of prosecuting or defending the actio] L (see Jamindar v Uniondale Union Free SchoolDist., 90 AD3d 610, 933 NYS2d 735 [2d Dept 201 11; Shayovich v 800 Ocean Parkway Apt. Corp., 77 AD3d 814,909 NYS2d 749 [2d Dept 20101; 1bssing v TownsendManor Inn, Inc., 72 AD3d 884,900 NYS2d 101 [2d Dept 20101; Minaya v Duane Reade Intl., Inc., 66 AD3d 402, 886 NYS2d 154 [ 1st Dept 2009l). Moreover, neither Hogan nor plaint iff demonstrated that unusual or unanticipated circumstances developed after the filing of the note of is: ue which would justify their request for additional pre-trial proceedings in this case (see Uticn Mut. Ins. Co. v P.M.A. Corp., supru; Audiovox Corp. v Benyamini, supru ). Accordingly, the motions by p aintiff and Hogan for the imposition of sanctions striking Suffolk s answer and cross claims bast d upon the alleged spoliation of evidence are denied. Dated: tsL FINAL DISPOSITION X NON-FINAL I I IS POSITION

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