Lagman v Overhead Door Corp.

[*1] Lagman v Overhead Door Corp. 2012 NY Slip Op 52514(U) Decided on June 29, 2012 Supreme Court, Westchester County Connolly, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 29, 2012
Supreme Court, Westchester County

Chris Lagman, Plaintiff,

against

Overhead Door Corporation AND LIBERTY OVERHEAD DOORS, INC., Defendants.



16831/09



Michael T. O'Leary, Esq.

Michael O'Leary, PLLC

Attorneys for Plaintiff

96 Fairway Dr.

Eastchester, NY 10709

By email: MOLearylawyer@gmail.com

Paul A. Lisovicz, Esq.

Coughlin Duffy LLP

Attorneys for Defendant

Overhead Door Corp.

Wall Street Plaza

88 Pine St., 28th Floor

New York, NY 10005

By facsimile: (973) 267-6442

(973) 267-6419

Brian Smith, Esq.

Humes & Wagner LLP

Attorneys for Defendant

Liberty Overhead Doors, Inc.

147 Forest Ave.

Locust Valley, NY 11560

By facsimile: (516) 676-4606
Francesca E. Connolly, J.

The following papers numbered 1 to 17 were read on this motion by plaintiff for an order (1) striking defendant Overhead Door Corporation's answer for failure to provide discovery, or, alternatively, (2) compelling discovery responses, a further deposition of Overhead Door Corporation's witness LeRoy Krupke, and the depositions of the two most knowledgeable employees of Overhead Door Corporation regarding design and safety records, (3) conditional preclusion order striking Overhead Door Corporation's answer, if it fails to produce the discovery, and (4) expanding the time to file the note of issue in order that plaintiff can complete "critically necessary discovery."[FN1]

Order to Show Cause - Affirmation - Exhibits A-K1-12

Affirmation in Opposition - Exhibits13-17

Filed Papers (Preliminary Conference Order, Compliance Conference Orders)

Upon the foregoing papers and the proceedings held on April 16, 2012, the motion is decided as follows:

PROCEDURAL HISTORY/BACKGROUND

In this personal injury and product's liability action, plaintiff seeks to recover damages for personal injuries he sustained on January 17, 2007, when a large steel overhead commercial garage door fell on him at his workplace. At the time of the accident, plaintiff worked for Liberty Transit (Liberty Lines, Inc.). Defendant Overhead Door Corp. (hereinafter "ODC") designed and manufactured the door. Defendant Liberty Overhead Doors, Inc. (hereinafter [*2]"Liberty Overhead") repaired the door prior to and after the subject incident. In the complaint, plaintiff specifically alleges that the torsion spring of the garage door was not maintained and failed, which caused the door to fall. Plaintiff also alleges in the complaint that the door did not include an emergency brake mechanism as part of its electronic system to prevent the door from falling in the event the torsion spring failed.

Plaintiff now seeks an order striking defendant ODC's answer for failure to provide certain discovery, or, alternatively, compelling defendant ODC to provide certain document discovery and provide its witness, LeRoy Krupke, for a further deposition. Specifically, plaintiff contends that defendant ODC's discovery responses were improper and insufficient as follows: (1) discovery responses were untimely, one response was improperly provided by letter and not by a formal written response, and ODC did not produce all of the demanded documents; (2) ODC's responses to the interrogatories were improper since they were signed by counsel and did not set forth the basis for the objections; and (3) the deposition of ODC's representative, LeRoy Krupke, was cut short and defense counsel improperly directed him not to answer opinion questions and not to produce his notes of his inspection of the subject door which he had used to refresh his recollection prior to the deposition. Finally, defendant ODC also seeks an extension of time to file the note of issue so that it may complete discovery. Plaintiff contends that he still needs to depose a former employee of defendant Liberty Overhead, William Feliciano, whose identity he learned of during the November 17, 2011 deposition of defendant Liberty Overhead's representative.

Discovery Demands and ODC's Responses

On or about March 15, 2010, plaintiff served various discovery demands by mail. On or about March 18, 2010, plaintiff served a Demand for Discovery and Inspection seeking, inter alia, all documents relating to the purchase/sale/possession of the door model FLDZ-201 by Liberty Line, Inc. and ODC for the period of ten years prior to January 17, 2007, documents relating to any notice of defective or dangerous condition of that model, and copies of warranties for that model.

On or about September 30, 2010, plaintiff served a Demand for Discovery and Inspection, which contained 28 demands for documents. These demands included (1) all written complaints and inspection records regarding all overhead doors at the premises where the subject accident occurred and regarding the make and model of door involved in the subject accident, (2) documents regarding the design, including all drawings, specifications, blueprints, correspondence, memorandum and filings, of the "subject type of overhead door involved in the subject accident" and "overhead doors by either of the defendants prior to the subject loss," (3) documents regarding all recalls, modifications, redesigns and/or alterations of the "subject type of overhead door involved in the subject accident" and "overhead doors by either of the defendants prior to the subject loss," (4) all warnings regarding the "subject type of overhead door involved in the subject accident," and (5) a copy of all warranties regarding the subject type of overhead door involved in the subject accident."

By Compliance Conference Order dated December 6, 2010 and entered on December 7, 2010, the court (Lefkowitz, J.) directed defendants to respond to plaintiff's September 30, 2010 demand for documents on or before January 21, 2011. Therein, the court also directed plaintiff to serve interrogatories on or before December 17, 2010, and directed defendants to respond to the interrogatories on or before January 21, 2011. By the same order, the court directed party depositions to be completed on or before March 15, 2011, and nonparty depositions on or before February 25, 2011.

On or about December 17, 2010, plaintiff served a First Set of Interrogatories and Request for Production of Documents upon defendant ODC. The demand consisted of 57 interrogatories and 22 document demands, including warnings, instructions, studies and tests, and any documents relating to the subject door.

By letter dated February 23, 2011, plaintiff's counsel, in response to a call from the office of ODC's counsel stating that ODC intended to produce a witness for deposition on February 25, 2011, advised counsel for ODC that the deposition would not go forward since ODC had not provided discovery and plaintiff's examination of the subject door was being held in abeyance until the discovery was produced. The letter was sent to counsel for ODC by e-mail.

On or about April 15, 2011, plaintiff served a Notice for Inspection and Discovery. The demand sought, inter alia, the identification of persons involved in the inspection, maintenance and repair of the subject door, records pertaining to the inspection, maintenance and repair on January 17, 2007, photographs of the door, and inspection of the broken torsion spring, bent drive chain and damaged stail.

By letter dated May 25, 2011, defendant ODC responded to plaintiff's "Demand for Discovery and Inspection." The letter did not specify whether the response was to plaintiff's Demand for Discovery and Inspection dated March 18, 2010 or September 30, 2010. At that time, ODC produced 158 documents. In the letter, ODC responded that it did not install or service the subject door and did not possess documents regarding the sale, installation, service or maintenance of the subject door.

During the Compliance Conference held on May 27, 2011, plaintiff failed to seek any relief with respect to outstanding discovery other than the depositions of defendants and nonparties. By Compliance Conference Order dated May 27, 2011, the court (Lefkowitz, J.) directed that all depositions be completed on or before August 27, 2011, and all discovery be completed on or before August 27, 2011.

Defendant ODC contends that plaintiff failed to schedule the depositions and in September, 2011 sought additional time to complete the depositions. Plaintiff's counsel asserted in a letter to the court dated September 29, 2011, that he had been on vacation from August 27, 2011 until September 7, 2011, and did not become aware that defendants' depositions had not taken place until September 15, 2011. In the letter, plaintiff's counsel requested an extension of [*3]time to complete discovery.

In October, 2011, defendant ODC produced LeRoy Krupke, Director of Advanced Technologies for ODC, for deposition. On November 10, 2011, plaintiff deposed a witness produced on behalf of defendant Liberty Overhead. The witness for Liberty Overhead testified that a former employee, William Feliciano, had repaired the subject door six days prior to plaintiff's accident and after the accident.

By letter dated November 14, 2011, plaintiff's counsel sent ODC's counsel copies of discovery demands dated March 15, 2010, March 18, 2010, April 15, 2011, September 30, 2010, and December 17, 2010. Therein, plaintiff's counsel acknowledged receipt of ODC's letter dated May 25, 2011 and document discovery, but noted that no formal response had been provided to the discovery demands. Plaintiff's counsel requested formal responses to each demand. The facsimile confirmation submitted with the letter by plaintiff, however, indicates that the facsimile to the New Jersey office of ODC's counsel failed.

On or about November 15, 2011, ODC produced photographs taken by LeRoy Krupke of the subject door.

By letter to the court dated November 22, 2011, plaintiff's counsel advised the court that during the deposition of defendant Liberty Overhead, William Feliciano, a former employee of Liberty, was identified as the person who did repair work on the subject door six days prior to the accident and repaired the door after the accident. Plaintiff's counsel also asserted, inter alia, that the deposition of LeRoy Krupke on behalf of defendant ODC was not completed and that Krupke was improperly directed not to answer opinion questions. Accordingly, plaintiff's counsel sought an extension of time to complete discovery and a pre-motion conference. A facsimile confirmation indicates that this letter was sent by facsimile to the New York office of ODC's counsel.

By letter dated December 1, 2011, plaintiff's counsel reserved his right to a further deposition of LeRoy Krupke, and demanded responses to plaintiff's discovery demands.

By letter dated December 23, 2011, plaintiff's counsel requested permission to file a motion to strike the answer of defendants based upon defendants' failure to respond to discovery demands. The facsimile confirmation submitted with the letter by plaintiff indicates that the facsimile was not sent to ODC's counsel's facsimile, but rather to a facsimile which had a 516 area code.

On or about January 5, 2012, plaintiff served nonparty William Feliciano with a subpoena to take his deposition. Plaintiff's counsel, by letter dated January 5, 2012, advised defendants' counsel that the subpoena had been served and again demanded formal responses to the discovery demands. The facsimile confirmation submitted with the letter by plaintiff indicates that the facsimile was not sent to ODC's counsel's facsimile, but rather to a facsimile which had a [*4]516 area code.

On January 6, 2012, plaintiff's counsel e-mailed ODC's counsel letters dated February 23, 2011, December 1, 2011, December 23, 2011, and January 5, 2012, and a copy of an envelope marked "Return to Sender" and post marked December 1, 2011, which was addressed to counsel for defendant Liberty Overhead at the address of ODC's counsel. Also attached to the e-mail was the Notice to Take Deposition and subpoena served upon William Feliciano directing his appearance for a deposition on "January 10, 2011" [sic] with respect to the accident which occurred on January 17, 2007.

On January 20, 2012, the court held a conference. Plaintiff's counsel contends that during that conference, the outstanding discovery was addressed and the court advised ODC to provide a complete and proper response to all outstanding discovery demands in one week and that a briefing schedule would proceed on February 6, 2012 if plaintiff felt the replies were inadequate. ODC's counsel asserts that plaintiff's counsel had not objected to the May, 2011 document production and, at the January, 2012 conference, had sought responses to a 79-item set of demands which ODC's counsel had not seen nor received until well after the May, 2011 conference.

On or about February 3, 2012, ODC served responses to the discovery demands dated March 18, 2010 (ODC's ex. A, sub. ex. 5), September 30, 2010 (ODC's ex. A, sub. ex. 4), and April 15, 2011 (ODC's ex. A, sub. ex. 6). On or about February 9, 2012, ODC served a Response to Plaintiff's First Set of Interrogatories and Request for Production of Documents.

By Compliance Conference Order dated March 2, 2012, the court (Lefkowitz, J.) directed that the deposition of nonparty William Feliciano be completed on or before April 13, 2012. The court also issued a briefing schedule for the present motion. Defendant ODC contends that at the conference plaintiff only objected to fifteen interrogatory responses as improper and did not raise any issues with respect to the LeRoy Krupke's deposition.

DISCUSSION/ANALYSIS

Untimely Discovery Responses by Defendant ODC

Plaintiff correctly contends that ODC's responses to plaintiff's discovery demands were untimely. However, "[t]he nature and degree of the penalty to be imposed on a motion pursuant to CPLR 3126 is a matter generally left to the discretion of the Supreme Court" (Carbajal v Bobo Robo, 38 AD3d 820 [2d Dept 2007]). To invoke the drastic remedy of striking a pleading a court must determine that the party's failure to disclose is willful and contumacious (Greene v Mullen, 70 AD3d 996 [2d Dept 2010]; Maiorino v City of New York, 39 AD3d 601 [2d Dept 2007]).

Although ODC's formal discovery responses were served almost a year and a half after plaintiff served the demands, the late responses do not warrant the striking of ODC's answer [*5]under the circumstances of this case. In May, 2011, ODC provided plaintiff with 158 documents. Thereafter, in February, 2012, ODC provided a formal written response to the September 30, 2010 Demand for Discovery and Inspection, as well as responses to all other discovery demands.

Additionally, ODC's counsel asserts that plaintiff's counsel did not object to the May 25, 2011 letter response or seek outstanding discovery from the court until more than a year later. ODC's counsel further contends that he did not see many of the demands until long after the May, 2011 conference. Although, on this motion, plaintiff submits numerous letters to ODC's counsel seeking the outstanding discovery, the facsimile confirmations annexed to the majority of the letters demonstrate that the letters were not faxed to the facsimile number given by ODC's counsel to the court or contained on counsel's letterhead. The one facsimile confirmation that lists the correct facsimile for ODC's counsel indicates that the facsimile failed. Further, on this motion, ODC submits a copy of an envelope from plaintiff's counsel addressed to counsel for defendant Liberty Overhead, but with ODC's counsel's address, which was postmarked December 1, 2011, and marked "Return to Sender." Accordingly, the records support the contention of ODC's counsel that it did not receive the letters objecting to the discovery response and demanding further responses.

There is no indication in the record that plaintiff raised the issue of the outstanding discovery responses with the court until December 23, 2011, when plaintiff's counsel requested permission to file a motion to strike the answer of defendants based upon defendants' failure to respond to discovery demands.

Finally, it cannot be said that plaintiff was unduly prejudiced by the delay in discovery insofar as the court has granted him additional time to obtain the discovery demanded and conduct additional discovery. Moreover, plaintiff's counsel contributed to the delay by neglecting to timely seek discovery and, thereafter, failing to timely pursue outstanding discovery and depositions. As noted by ODC, plaintiff failed to attempt to schedule the depositions of defendants until May, 2011, then at the May, 2011 conference sought additional time to conduct the depositions, but did not seek any other outstanding discovery. ODC further points out that at the conference in September, 2011, the court gave plaintiff until October, 2011 to conduct depositions. At the October, 2011 conference, plaintiff stated that he needed the deposition of a former employee of defendant Liberty Overhead Doors. Then, subsequently, at the November, 2011 conference, objected to the depositions of defendants, and sought formal discovery responses for the first time. The contention of plaintiff's counsel that the delay in discovery was the result of his substitution as counsel in February, 2012 and the fact that he did not receive the complete file from former counsel until mid-February 2012 is disingenuous. The record demonstrates that plaintiff's counsel personally handled the action from its inception in 2009 while he was employed by plaintiff's former counsel prior to leaving that law firm.

Despite plaintiff's counsel's neglectful conduct in seeking discovery, the court, nevertheless, reaches the merits of plaintiff's motion in order to avoid prejudicing plaintiff, who allegedly sustained debilitating personal injuries.

[*6]Response to Plaintiff's First Set of Interrogatories

Plaintiff contends that ODC's responses to the interrogatories were a nullity since they were signed by counsel and not sworn to under oath, were not affirmed in any manner, or completed by someone with personal knowledge as required by CPLR 3133. Plaintiff also contends that the objections by ODC were improper since they did not set forth a basis for the objections. Plaintiff specifically challenges responses to interrogatories no. 10, 15-16, 21, 23, 25, 27, 33-35, 37, 39-41, 44, 48, 51-52, and 57.

ODC opposes the motion and contends that at the time of the March, 2012 conference, plaintiff's counsel only objected to 15 responses to the interrogatories as improper, but on this motion has expanded and changed the interrogatory responses, which he challenges. In any event, ODC contends that the interrogatories were largely improper as grossly burdensome, irrelevant, and not drafted with reference to the facts and issues in this case. ODC notes that some of the interrogatories sought information for a 40-year period, regarding every product, and every lawsuit concerning any product manufactured or sold. Accordingly, ODC contends that the court should strike the interrogatories as beyond the scope permissible in a products liability action and as unduly burdensome since they seek irrelevant information. ODC further asserts that plaintiff improperly served interrogatories as to the negligence claims in violation of "CPLR 3030.1" [sic] which ODC contends provides that a party in a personal injury action may not conduct depositions and serve interrogatories on negligence claims. ODC's counsel asserts that he will supply a verification by the client.

CPLR 3133 (b) provides that "[i]nterrogatories shall be answered in writing under oath by the party served, if an individual, or, if the party served is a corporation ..., by an officer, director, member, agent or employee having the information." Here, the interrogatories are signed by counsel for defendant ODC and not sworn to under oath. However, it is unclear if plaintiff gave defendant ODC an opportunity to correct the deficiency or raised this objection until the present motion. Accordingly, ODC's failure to have the responses to the interrogatories sworn to under oath by the party cannot be deemed to be willful and deliberate. To the extent that ODC's interrogatory responses failed to comply with CPLR 3133 (b), defendant ODC shall provide responses to the interrogatories, with the exception of those interrogatories deemed improper by the court, which shall be in writing under oath by an individual authorized under CPLR 3133 (b).

CPLR 3130 (1) provides, in relevant part, that "in an action to recover damages for personal injury ... predicated solely on a cause or causes of action for negligence, a party shall not be permitted to serve interrogatories on and conduct a deposition of the same party pursuant to rule 3107 without leave of court." CPLR 3130 (1), however, is not applicable to personal injury actions which contain claims other than negligence since the action is not "predicated solely on a cause of action for negligence" (Kimball v Normandeau, 83 AD3d 1522 [3d Dept 2011] [leave of court to serve interrogatories not required where action alleged breach of warranty of habitability and negligence claims]; LaJoy v State of New York, 48 AD3d 1022 [3d Dept 2008]; see Carmody-Wait 2d § 42:423 [2012]). Moreover, it has been held that where a personal injury [*7]action is not based solely upon a cause of action for negligence and falls outside the ambit of CPLR 3130, interrogatories may be served as to the negligence claims as well as the other claims alleged therein (LaJoy, 48 AD3d at 1023). ODC, therefore, erroneously contends that plaintiff improperly served the interrogatories based solely on the fact that plaintiff alleges a cause of action for negligence insofar as plaintiff also alleges a cause of action for strict products liability. Accordingly, since the present personal injury action is not predicated solely upon a negligence cause of action, CPLR 3130 does not prohibit the service of interrogatories.

The following interrogatories, however, are palpably improper and that branch of plaintiff's motion seeking an order compelling ODC to respond to those interrogatories must be denied and those interrogatories stricken:

Interrogatory no. 15, which asks ODC to, inter alia, identify every mistake and abuse that contributed to the proximate cause of the accident, is palpably improper insofar as it improperly seeks a legal conclusion (Pineda v J.B. Roerig & Co., 43 AD2d 827 [1st Dept 1974]).

Interrogatories no. 21, 23, 33, 35, 51-52 are palpably improper as overbroad, seek information which is not material to the issues in this action, or seek document discovery. Those interrogatories seek, inter alia, information as to "any product" manufactured by ODC (No. 21), the identity of every settlement agreement entered into by ODC in the last 40 years (No. 23), the identity of all written or oral complaints regarding injuries caused by "any and all" overhead doors manufactured, designed and/or sold by ODC (No. 33), the identity and production of all documents regarding accident reports caused in whole or party by "any and all" overhead doors manufactured, designed and/or sold by ODC (No. 35), and whether "any" models of ODC's product lines have been threatened with recall or proposed for removal from the market by any government agency (No. 51-52).

Interrogatory no. 48, which seeks information as to whether ODC participated in the formulation of voluntary industry standards, is palpably improper as it seeks information which is irrelevant to the issues in this case.

The motion is denied to the extent it seeks to compel responses to the following interrogatories, which are palpably improper as they seek document discovery, which is not the function of an interrogatory: no. 10 (identify any relevant documents which have been lost, misplaced, or destroyed); second half of no. 25 (produce documents); second half of no. 27 (produce all documents regarding tests performed on subject door); no. 34 (identify and provide copies of all documents regarding accidents); second half of no. 37 (identify all documentation and engineering reports of comparison tests between the subject product and other products and produce those documents); second half of no. 39 (produce all documentation regarding safety analysis and/or testing on subject product); second half of no. 44 (identify reports of outside engineers and Quality Control consultants/organizations regarding subject product and produce those reports); and no. 57 (identify and produce, inter alia, engineering drawings, blueprints, etc.).

That branch of the motion seeking to compel responses to the following interrogatories is granted insofar as the interrogatories were sufficiently limited to the subject door: first half of no. 25 (describe, inter alia, tests and investigations which relate to actual or potential failure of the subject product); first half of no. 27 (identify all tests performed on the subject product); first half of no. 37 (have any engineering or performance comparisons been made between the subject product and other products); first half of no. 39 (identify the nature and extent of all safety analysis and/or testing that has been performed on the subject product); no. 40 (identify the persons who designed the product and state whether those persons are still employees of ODC and their last known address and employment); first half of no. 44 (identify the name of all outside engineering or Quality Control consultants and organizations who have participated in the design, manufacture, inspection, and testing of the subject product, and its procedures or testing; and whether ODC adopted recommendations).

As to interrogatory no. 16, ODC only gave a partial response. Accordingly, ODC is directed to fully respond to the interrogatory by identifying any entities, subcontractors, employees or persons, other than itself, who participated in the manufacturing, marketing, assembling, testing, inspecting, or examining of the subject product. As to interrogatory no. 40 ODC provided a proper response, but such response must be provided again in writing under oath by an individual authorized under CPLR 3133 (b) along with responses to the remaining interrogatories that were not challenged by ODC or were not determined by this court to be improper.

Document Discovery

Plaintiff generally asserts that ODC failed to produce demanded documents. Plaintiff's counsel asserts that he sent nine letters seeking the outstanding discovery. Plaintiff's counsel contends that responses to plaintiff's demands dated September 30, 2010 and March 18, 2010 are not contained in his file, and he believes they were not submitted. Plaintiff also appears to challenge ODC's response to the Request for Production of Documents, which was served on December 17, 2010 with the First Set of Interrogatories. Plaintiff specifically seeks document discovery regarding the make and model of the overhead door involved in the subject accident as follows: prior complaints about doors failing; prior accidents; design documents; redesign/alteration documents; documents regarding recalls and modifications; warranties; owner manual; and user instructions. Plaintiff also contends that as to documents which ODC responded that none existed, ODC failed to indicate what search was taken to find the demanded documents. Finally, plaintiff also contends that ODC failed to produce documents requested during the deposition of its representative Larry Krupke.

Initially, ODC contends, as set forth above, that plaintiff failed to diligently seek discovery and did not express dissatisfaction with the discovery responses until over a year later. ODC contends that it has provided all document discovery relating to the subject door, and properly objected to requests which were overbroad or irrelevant. Plaintiff asserts that document discovery was provided by letter of May 25, 2011, and formal responses were provided in [*8]February, 2012. ODC annexes formal written responses, dated February 3, 2012, to plaintiff's demands dated March 18, 2010 and September 30, 2010. ODC notes that LeRoy Krupke, ODC's witness produced for deposition, testified at the deposition that when he received the documents, they were already Bates stamped. ODC further notes that plaintiff went ahead with depositions and never asserted that document production was inadequate. ODC's counsel denied receiving letters from plaintiff's counsel objecting to ODC's discovery responses or seeking discovery.

ODC further asserts that the subject door was over 20 years old and has parts which have a "service life" and require maintenance. ODC contends that it was not responsible for maintaining or repairing the subject door. ODC further asserts that the door was designed with an emergency brake in the event the spring broke, contrary to plaintiff's allegation. ODC also asserts that plaintiff is alleging for the first time that there was a problem with the hub, sprocket, and drive chain. Accordingly, ODC contends that plaintiff cannot now seek discovery as to these allegations since they were never claimed in the bill of particulars.

As noted earlier, the court, despite plaintiff's counsel's neglectful conduct in seeking discovery, reaches the merits of plaintiff's motion with respect to document discovery in order to avoid prejudicing the plaintiff.

September 30, 2010 Document Demand

Plaintiff's demand dated September 30, 2010 sought all written complaints and/or records of oral complaints, as well as accident reports, regarding the overhead doors at the subject premises, including the subject door, prior to and including January 17, 2007, the date of the accident (demands no. 1, 4 and 21). ODC responded "None." Demand no. 6 of the September 30, 2010 demand sought all accident reports regarding other accidents prior to January 18, 2007 involving the subject door. ODC responded to the demand as follows: "With respect to the facts and issues of this case, none. Upon advice of counsel, objection is otherwise presented to this request as being overly broad and seeking discovery of information not material and necessary to the prosecution of the case and not reasonably calculated to lead to the discovery of admissible evidence."

Plaintiff's demand dated September 30, 2010, also sought complaints and accident reports regarding the "make and model" of the door involved in the accident (demands no. 2, 5, 7). ODC responded as follows: "With respect to the facts and issues of this case, none. Upon advice of counsel, objection is otherwise presented to this request as being overly broad and seeking discovery of information not material and necessary to the prosecution of the case and not reasonably calculated to lead to the discovery of admissible evidence." As to the "subject type of overhead door involved in the subject accident" plaintiff demanded documents regarding the following: design, including drawings and blueprints; recalls, modifications, redesigns, and alterations, including drawings and blueprints; and instructions, warnings and warranties included with the door or available to the public prior to the accident (demands no. 22, 24, 26-28). As to demands 22, 26 and 27, ODC referred to the documents produced on May 25, 2011. [*9]With respect to demand 24, which sought documents regarding recalls, modifications, redesigns, and alterations, including drawings and blueprints, of the "subject type of overhead door involved in the subject accident," ODC responded: "With respect to the facts and issues of this case, none, except for those documents provided in response of this party dated May 25, 2011." Plaintiff contends that the drawings produced were improperly limited and did not include the change history from 1980 to January 17, 2007. As to demand no. 28, ODC responded it did not possess any documents related to the sale of the subject door.

Although a party cannot be compelled to produce documents not in its possession, the party must set forth the search taken for the documents which cannot be located. Accordingly, ODC shall amplify those responses to plaintiff's demand of September 30, 2010, wherein ODC responded "None," including demands no. 1, 4 and 21, by providing an affidavit from the person who conducted the search for the documents providing details of the search taken to locate the documents that could not be located.

As to demand no. 6 of the September 30, 2010 demand, which sought all accident reports regarding other accidents prior to January 18, 2007 involving the subject door, as well as demands nos. 2, 5 and 7, which sought complaints and accident reports regarding the "make and model" of the door involved in the accident, ODC improperly objected to the demands as overly broad and seeking irrelevant material. The issue of a manufacturer's notice of an alleged product defect is an essential factor in a products liability and negligence action (Mann ex rel. Akst v Cooper Tire Co., 33 AD3d 24, 35 [1st Dept 2006]; Power v Crown Equip. Corp., 189 AD2d 310 [1st Dept 1993]). Accordingly, disclosure has been permitted with respect to other claims against a defendant manufacturer which are similar in nature to the claim asserted by plaintiff (Singh v Hobart Corp., 302 AD2d 444 [2d Dept 2003]). Here, plaintiff is entitled to disclosure regarding complaints and accidents involving the same or similar doors (see Van Horn v Thompson & Johnson Equip. Co., 291 AD2d 885 [4th Dept 2002] [plaintiff entitled to disclosure regarding models of skid-steer loader which are similar to the subject model involved in accidents similar to plaintiff's accident]; DeDivitis v International Bus. Machs. Corp., 228 AD2d 963 [3d Dept 1996]; D'Alessio v Nabisco, 123 AD2d 816 [2d Dept 1986]; Johantgen v Hobart Mfg. Co., 64 AD2d 858 [4th Dept 1978] [plaintiff entitled to disclosure regarding other or similar accidents involving the same or similar product at issue]). ODC, therefore, shall fully respond to demands no. 2, 5-7 of plaintiff's September 30, 2010 document demand by producing all complaints and accident reports regarding accidents prior to January 18, 2007, which involved the subject door or doors of the same make and model as the subject door.

Similarly, ODC improperly objected to demand no. 24, which sought documents regarding recalls, modifications, redesigns and alterations, including drawings and blueprints, of the "subject type of overhead door involved in the subject accident," as seeking irrelevant material. In products liability actions involving a failure to warn, such as alleged here, "knowledge of the dangers inherent in its product is an essential factor in considering whether a manufacturer has acted reasonable in response to evidence that a product is potentially dangerous" (Power, 189 AD2d at 313). Accordingly, a plaintiff in a products liability action is [*10]entitled to disclosure of information regarding the design, engineering, and manufacture of models of product which are similar in design and operation to the product at issue (Van Horn, 291 AD2d at 885). Therefore, plaintiff in the present action is entitled to disclosure of all documents regarding recalls, modifications, redesigns and alterations, including drawings and blueprints showing the change history of the subject door model from 1980 to January 17, 2007, as requested by plaintiff. Accordingly, ODC shall provide a further response to demand no. 24 of plaintiff's September 30, 2010 document demand by producing all documents regarding recalls, modifications, redesigns and alterations of doors of the same make and model as the subject door, including drawings and blueprints, from 1980 to January 17, 2007.

ODC's response to demand no. 28 that it did not possess any documents related to the sale of the subject door was not responsive to the demand, which sought warranties regarding the subject type of door that were included with the door when packaged and/or available to the public prior to the accident. ODC, therefore, shall provide a complete response to demand no. 28 by producing any warranties in its possession that it offered as to doors of the same model as the subject door and that were packaged with the door or otherwise available to the public.

March 18, 2010 Document Demand

The March 18, 2010 demand sought, inter alia, documents related to the purchase of door model "FLDZ-201," notice of defective or dangerous condition of said model, and written and express warranties relating to said model. As to the notice of defective or dangerous condition, ODC responded to demand no. 6 that it had "none." As to the warranties, ODC responded to demand no. 8: "The party is unaware of any documents relating to the sale or installation of the subject door at the Liberty Lines, Inc. facility." As to demand no. 9 regarding a copy of all express warranties concerning model FLDZ-201, ODC responded "None."

ODC's response to demand no. 8 was unresponsive to the demand, and ODC shall provide a complete response to demand no. 8 by producing any warranties in its possession that it offered as to door model FLDZ-201. If no warranties are in ODC's possession, ODC shall provide an affidavit from someone with personal knowledge regarding the warranties offered with the door model or lack thereof, and the search taken to locate the warranties. As to demands no. 6 and 9, ODC is directed to provide an affidavit of the person who conducted the search for the documents providing details of the search taken to locate the documents that could not be located.

December 17, 2010 Document Demand

Plaintiff also appears to challenge ODC's response to the Request for Production of Documents, which was served on December 17, 2010 with the First Set of Interrogatories, on the grounds that it failed to state what search was taken to find demanded documents, "the identity and production of documents did not take place," "specific records were not identified nor was any opportunity provided to examine and make copies of records," and ODC failed to provide a [*11]privilege log. Plaintiff does not identify the specific responses to which he is objecting. Accordingly, the court will examine only those responses to the specific document demands that plaintiff has set forth as demanded and not provided in the motion papers, namely complaints, accident reports, design documents, redesign/alteration documents, documents regarding recalls and modifications, warranties, owner manual, and user instructions.

ODC contends that it has provided all document discovery relating to the subject door, and properly objected to requests that were overbroad or irrelevant. ODC asserts that its discovery responses were prepared by persons with actual knowledge of the information contained in them along with the assistance of counsel.

The December 10, 2010 document demand sought documents relating to complaints by the "subject product" (demand nos. 14 and 15), warnings, instructions, safety information, etc. distributed with the subject product (demand no. 17), documents relating to alternate designs that you considered before manufacturing the "subject product" (demand no. 18), instructions supplied with the "subject product" (demand no. 19), and documents relating to recalls of the "subject product" (demand no. 22). "Subject product" was defined by the document demand as door model FLD2-201 and all parts affiliated with the operation and/or use of the subject door.

As to all of the foregoing demands, ODC responded either "Not applicable, none," or "Please see General Objections." These responses, as noted above, were improper as plaintiff is entitled to document disclosure regarding the door model involved in the subject accident in light of the products liability claim. Accordingly, ODC shall provide a further response to the December 10, 2010 document demand with respect to the foregoing demands and produce responsive documents if in ODC's possession. If said documents are not in the possession of ODC, it shall provide an affidavit from a person with knowledge of the search for the documents and provide details of the search.

To the extent plaintiff now seeks for the first time to obtain discovery as to documents relating to the testing and design of certain components of the subject door, which plaintiff now contends caused the door to fail, namely the counterbalance system, drive chain, hub, and FL Operator, the motion is denied. Plaintiff has failed to formally demand the foregoing documents, failed to include claims regarding the alleged component failures in the bill of particulars or amend the bill of particulars to include such claims, and the request for the discovery almost three years after the commencement of the action cannot be countenanced by the court. Notably, plaintiff's complaint and bill of particulars only alleged that the door's torsion spring failed and that the door did not include an emergency brake mechanism as part of its electronic system to prevent the door from falling in the event the torsion spring failed.

Post-Deposition Document Discovery

Plaintiff's counsel also asserts that he demanded documents during the deposition of Larry Krupke, ODC's witness, but certain documents have not been produced, including a [*12]maintenance manual for Series 420 and 424 doors, the UL test file, and drawings of change history from 1980 to the time of the accident.

As to discovery of the maintenance manual, plaintiff contends that ODC produced a manual for a door produced from the late 1980s to the early 1990s, but should produce the manual for 1981 in light of the testimony of a witness from plaintiff's employer, Liberty Lines Transit, that the door was installed in 1981. Plaintiff relies upon Mr. Krupke's identification of the subject door as either a Series 424 or 420 with an electric FL operator (control system). Plaintiff also contends that Mr. Krupke testified that a metal tag reading "FLD2-201," which was affixed to the door, was designed in the 1970s, but the subject door was manufactured some time in 1986 through the mid-1990s since the track system for the door was produced beginning in 1986 or 1987 and the FL operator was out of production by the mid-1990s.

At Mr. Krupke's deposition, however, plaintiff did not demand the production of a copy of the manual for the doors Series 420 and 424 that were produced in 1981. In any event, contrary to plaintiff's contention, the witness from Liberty Lines Transit did not testify that the door was installed in 1981. Rather, the witness testified that the premises were converted into a bus garage in 1982, he did not know when the subject door was installed, it was "only a guess" that the door was installed when the premises were converted to a bus garage, and he did not recall the door being installed after 1992 (Plaintiff's ex. K at 7, 11-12). Moreover, Mr. Krupke testified that the metal tag reading "FLD2-201" was affixed to the FL Operator, not the door itself (Plaintiff's ex. J at 40). He further testified that the FL Operator consisted of the electrical control box, the motor, the mounting frame and power train that operates the door (Plaintiff's ex. J at 41), and that the door, the track, hardware, and springs make up the second system (Plaintiff's ex. J. at 41). Accordingly, since there was no demand for a copy of the manual for the door Series 420 and 424 that was manufactured in 1981 or testimony demonstrating that a manual for a door manufactured in 1981 is relevant to the issues in this action, that branch of the motion seeking to compel ODC to produce a copy of a manual for the door Series 420 and 424 for the year 1981 is denied.

Plaintiff, however, during Mr. Krupke's deposition did demand a copy of the UL test file and the change history and drawings from 1980 to 1986 (Plaintiff's ex. J at 138-139), which plaintiff contends have not yet been produced. To the extent Mr. Krupke testified regarding the UL test file and that it may contain information relevant to the issues in this action, ODC shall produce a copy of the UL test file. Plaintiff is also entitled to the change history and drawings from 1980 to 1986, as demanded. As previously stated, a plaintiff in a products liability action involving a failure to warn is entitled to design records of the model of door involved in the subject accident since they are relevant as to the manufacturer's knowledge of any dangers inherent in its product.

Deposition of LeRoy Krupke on Behalf of ODC

In October, 2011, defendant ODC produced LeRoy Krupke, Director of Advanced [*13]Technologies for ODC, for deposition. During the deposition, ODC's counsel directed Mr. Krupke not to answer questions calling for opinions, and directed Mr. Krupke not to produce the notes from his inspection of the subject door. Mr. Krupke testified during his deposition that he had used the notes to refresh his recollection prior to the deposition.

Plaintiff now contends that the deposition of LeRoy Krupke was cut short, defense counsel improperly directed him not to answer opinion questions, and defense counsel directed him not to produce notes of his inspection of the subject door that he had used to refresh his recollection prior to the deposition.[FN2] Plaintiff asserts that it was proper to seek opinion testimony from Mr. Krupke, who has expertise in design, testing and oversight of production of overhead doors, regarding "state of the art" and generally accepted standards within the industry. Plaintiff equates it to asking a defendant doctor in a medical malpractice case as to the standard of care, which is permitted (cites McDermott v Manhattan Eye, Ear, 15 NY2d 20 [1964]). Accordingly, plaintiff seeks a further deposition of LeRoy Krupke. Plaintiff also seeks a deposition of the two most knowledgeable employees of ODC regarding design and safety records.

ODC contends that at the pre-motion conference, plaintiff only asserted that ODC's interrogatory responses were improper. Accordingly, ODC contends that the motion should be limited to that issue. With respect to Mr. Krupke's deposition, ODC contends the deposition was not cut short. ODC asserts that the deposition ended because plaintiff's counsel had no more questions. ODC further asserts that plaintiff improperly sought opinion testimony from Mr. Krupke, who will testify as an expert for ODC in the areas of design and engineering of the subject door.

Despite the fact that plaintiff failed to raise certain discovery issues at the compliance conference and, therefore, has violated the rules of the Compliance Part by seeking relief in the present motion as to discovery issues not discussed at the compliance conference, the court, in the exercise of its discretion and despite plaintiff's counsel's neglect, elects to reach these issues in an effort to expedite the action, which has lingered unnecessarily in the Compliance Part.

The transcript of Mr. Krupke's deposition does not support plaintiff's contention that the deposition was cut short. Notably, plaintiff's counsel did not reserve his right to continue the deposition or otherwise indicate that he had additional questions for Mr. Krupke. Moreover, there was no request by defense counsel that Mr. Krupke be allowed to leave prior to the deposition being completed. The deposition commenced at 11:10 a.m. and concluded at 4:05 p.m.

Contrary to plaintiff's contention, ODC's counsel properly objected to plaintiff's questions [*14]to Mr. Krupke that called for opinion testimony. Although ODC offered Mr. Krupke as a fact witness, ODC also indicated it will call him as an expert witness. Accordingly, plaintiff improperly sought to elicit expert opinion testimony from him. CPLR 3101 (d) limits disclosure as to an expert witness to the expert's identity, the subject matter upon which the expert is expected to testify, the substance of the facts and opinions upon which the expert is expected to testify, the qualifications of each expert, and a summary of the grounds for each expert's opinion (CPLR 3101 [d][1]). An expert witness may not be deposed absent a showing of special circumstances, which has been held by the courts to include the unavailability of evidence inspected by the expert (Adams Light. Corp. v First Cent. Ins. Co. 230 AD2d 757 [2d Dept 1996]; Rosario v General Motors Corp., 148 AD2d 108 [1st Dept 1989]; Siegel, NY Prac § 348A [5th ed]). Where, however, special circumstances warrant the deposition of an expert, courts have limited the deposition to the facts and excepted the expert's opinions (Rosario, 148 AD2d at 113; Nagel v Metzger, 96 AD2d 738 [4th Dept 1983]; see Taft Partners Dev. Group v Drizin, 277 AD2d 163 [1st Dept 2000]; Mead v Benjamin, 201 AD2d 796 [3d Dept 1994] [deposition limited to expert's factual basis]). In Hartford v Black & Decker (U.S.) (221 AD2d 986 [4th Dept 1995]), where the court permitted defendant to depose plaintiff's experts since the fire scene was altered to some extent during that experts' investigation, the court limited the inquiry at the deposition to the factual circumstances and observations of the experts and held that "[i]nquiring into the experts' opinions is prohibited" (Id. at 986).

In view of the foregoing, that branch of plaintiff's motion seeking a further deposition of Mr. Krupke so that plaintiff may inquire as to his expert opinions is denied.

That branch of plaintiff's motion seeking depositions of the two most knowledgeable employees of ODC regarding design and safety records is also denied. A corporate party has the right to designate the representative who shall be examined (Trueforge Global Mach. Corp. v Viraj Group, 84 AD3d 938, 940 [2d Dept 2011]; Nunez v Chase Manhattan Bank, 71 AD3d 967, 968 [2d Dept 2010]). A party seeking an additional deposition of a corporate party must establish that (1) the representative already deposed had insufficient knowledge, or was otherwise inadequate, and (2) there is a substantial likelihood that the person or persons sought to be deposed possess information which is material and necessary to the prosecution or defense of the case (Giordano v New Rochelle Mun. Hous. Auth., 84 AD3d 729 [2d Dept 2011]; Nunez, 71 AD3d at 968). Here, plaintiff has failed to demonstrate, let alone argue, that LeRoy Krupke, who was produced on behalf of ODC for a deposition, did not have sufficient knowledge of the design and safety record of the subject door. Notably, Mr. Krupke is the Director of Advanced Technologies for ODC.

Plaintiff, however, correctly contends that ODC should have produced the notes, which Mr. Krupke testified during his deposition that he reviewed to refresh his recollection prior to the deposition (Crawford v Lahiri, 250 AD2d 722 [2d Dept 1998]; Stern v Aetna Cas. & Sur. Co., 159 AD2d 1013 [4th Dept 1990]; Slotnik v State of New York, 129 Misc 2d 553, 554-555 [Ct Claims 1985]; Prince-Richardson on Evidence [11th ed] § 6-215). Accordingly, ODC shall produce the notes that Mr. Krupke reviewed prior to his deposition to plaintiff.

Extension of Time to File the Note of Issue and Take the Deposition of William Feliciano

Plaintiff seeks an extension of time to file his note of issue since ODC has withheld discovery and prevented him from questioning Mr. Krupke as to his opinions. Plaintiff also contends that he still needs to take the deposition of William Feliciano, a former employee of defendant Liberty Overhead Doors, who repaired the subject door six days prior to plaintiff's accident. In November, 2011, plaintiff deposed a witness produced on behalf of defendant Liberty Overhead Doors, who testified as to the foregoing. Plaintiff subpoenaed Mr. Feliciano and his deposition was scheduled for April 13, 2012. The deposition, however, had not gone forward as of oral argument held on this motion on April 16, 2012.

This court has previously granted plaintiff an extension of time to obtain the deposition of Mr. Feliciano, and more than six months has elapsed since plaintiff discovered the identity of Mr. Feliciano and his role in repairing the subject door only days prior to the subject accident. Accordingly, at this juncture in the litigation, plaintiff should have obtained Mr. Feliciano's deposition.

To the extent, however, that this court is directing ODC to provide certain discovery to plaintiff, plaintiff is granted a limited extension of time to file the note of issue as set forth below.

In view of the foregoing, it is

ORDERED that the branch of the motion seeking to strike the answer of defendant ODC is denied; and it is further

ORDERED that the branch of the motion seeking to compel defendant ODC to produce certain discovery is granted, and ODC is directed to provide the following discovery within 20 days of entry of this order:

(1) A response to plaintiff's First Set of Interrogatories dated December 17, 2010, which shall be sworn to under oath by an individual authorized under CPLR 3133 (b), except as to the following interrogatories, which are palpably improper and stricken: no. 10, 21, 23, second part of 25, second part of 27, 33, 35, second part of 37, second part of 39, second part of 44, 48, 51-52, and 57. ODC's response shall include responses to the following interrogatories which were objected to by ODC: no. 16, first part of 25, 27, 37, 39-40, and 44; and

(2) A further response to demands no. 6 and 9 of plaintiff's Demand for Discovery and Inspection dated March 18, 2010 and demands no. 1, 4 and 21 of plaintiff's Demand for Discovery and Inspection dated September 30, 2010, by providing an affidavit from a person with knowledge of the search for the demanded documents, which shall set forth the details of the search for the documents ODC responded were not in its possession; and

(3) A further response to demand no. 8 of plaintiff's Demand for Discovery and Inspection dated March 18, 2010 and demands no. 2, 5-7, 24 and 28 of plaintiff's Demand for Discovery and Inspection dated September 30, 2010, which shall include the production of the demanded documents or, if the demanded documents are not in ODC's possession, an affidavit from a person with knowledge of the search for the demanded documents, which shall set forth the details of the search; and

(4) A further response to demands no. 14-15, 17-19 and 22 of plaintiff's Request for Production of Documents dated December 17, 2010, which shall include production of the demanded documents or, if the demanded documents are not in ODC's possession, an affidavit from a person with knowledge of the search for the demanded documents, which shall set forth the details of the search; and it is further

ORDERED that to the extent plaintiff seeks discovery as to the subject door's counterbalance system, drive chain, hub, and FL Operator, the motion is denied; and it is further

ORDERED that the branch of plaintiff's motion seeking a further deposition of LeRoy Krupke, the witness produced on behalf of ODC, is denied; and it is further

ORDERED that the branch of plaintiff's motion seeking depositions of the two most knowledgeable employees of ODC regarding design and safety records is denied; and it is further

ORDERED that the branch of plaintiff's motion seeking to compel document discovery demanded at LeRoy Krupe's deposition is granted only to the extent that ODC shall produce the following documents: (1) UL test file; (2) change history and drawings for the subject model door from 1980 to 1986; and (3) LeRoy Krupke's notes of his inspection of the subject door, which he testified he reviewed to refresh his recollection prior to his deposition; and it is further

ORDERED that the branch of plaintiff's motion seeking conditional preclusion and an order striking ODC's answer is denied; and it is further

ORDERED that the branch of plaintiff's motion seeking an extension of time to file the note of issue is granted and plaintiff shall file the note of issue within 30 days of entry of this order; and it is further

ORDERED that the remaining relief sought by plaintiff is denied.

The foregoing constitutes the decision and order of this court.

Dated: White Plains, New YorkJune 29, 2012

_____________________________________HON. FRANCESCA E. CONNOLLY, J.S.C.

TO:

cc:Compliance Part Clerk Footnotes

Footnote 1:Although in the Affirmation in Support of the Motion counsel seeks as alternative relief the preclusion of testimony concerning ODC's liability and a finding in favor of plaintiff on the issue of liability, said relief was not sought in the Order to Show Cause.

Footnote 2:Plaintiff further asserts that Mr. Krupke was not allowed to testify as to prior incidents of overhead doors falling, but then states that Mr. Krupke testified as to one incident when a door fell due to springs failing and that the case had settled.