Iavarone v City of New York

[*1] Iavarone v City of New York 2009 NY Slip Op 52563(U) [25 Misc 3d 1243(A)] Decided on November 16, 2009 Supreme Court, Richmond County Aliotta, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 16, 2009
Supreme Court, Richmond County

Alyce Iavarone and BRUCE BROCK, Plaintiffs,

against

The City of New York and SCALA CONTRACTING CO., INC., Defendants.



103693/05

Thomas P. Aliotta, J.

Defendant the City of New York (hereinafter, the "City") moves for an order:

Pursuant to CPLR 3126, striking the complaint for failure to comply with the Preliminary Conference Order and defendants' discovery demands, or alternatively, pursuant to CPLR 3124 compelling plaintiffs to produce the requested disclosure by a date certain, and directing them to appear for additional depositions;

Pursuant to CPLR 3042 precluding plaintiff from offering any evidence at trial regarding the items as to which particulars have not been delivered, or alternatively, pursuant to CPLR 3124 compelling plaintiffs to supplement their bill of particulars by a date certain and granting leave to the City to amend its answer to assert a cross claim for indemnification against defendant Scala Contracting Co. and to obtain additional discovery from both plaintiffs and said co-defendant pursuant to CPLR 3102(a);

Pursuant to CPLR 8106, awarding costs on the motion.

Plaintiffs Alyce Iavarone and Bruce Brock oppose the motion. Co-defendant Scala Contracting Co., Inc. (hereinafter, "Scala") opposes only that part of the motion which seeks leave to amend the City's answer and to obtain additional discovery from Scala.

This litigation arises out of the alleged illegal demolition of plaintiffs' home, located at 116 Holland Avenue on Staten Island (hereafter, "the dwelling") on June 13, 2005. Plaintiffs commenced this action by the filing and service of a summons with complaint upon defendants on or about December 16, 2005. Issue was joined by the service of answers by the City, on February 16, 2006 and co-defendant Scala, on June 2, 2006.

As is relevant, on May 26, 2005, the New York City Department of Buildings advised plaintiff Bruce Brock that the dwelling had been declared unsafe and in "imminent peril" of collapse, and that it had to be repaired immediately or it would be demolished. Said notice also provided that in the absence of immediate repairs begun on behalf of the owner, the City would have the necessary demolition work done. When repairs were not begun, the City requested bids on the emergency demolition work, and subsequently entered into a contract with co-defendant Scala to demolish the dwelling within 20 working days. On June 13, 2005, Scala commenced demolition, which was completed on or before July 1, 2005. The complaint alleges, in pertinent part, that the demolition was performed without regard to the contents of the dwelling, and that the City lacked the legal [*2]authority to order its demolition.

The instant application, deemed timely by this Court (cf. CPLR 3122)[FN1], arises from plaintiffs' alleged non-compliance with the City's discovery demands, as well as its demand for a further bill of particulars on the new theory of liability postulated by plaintiff Alyce Iavarone in her January 8, 2009 affidavit in opposition to defendant Scala's motion for summary judgment i.e., defendant Scala's alleged improper use of demolition debris as backfill at the subject premises following demolition. That motion for summary judgment was denied by this Court on or about April 21, 2009.

It is beyond cavil that, in the absence of privilege, all matter material and necessary in the prosecution or defense of an action must be disclosed by the parties regardless of the burden of proof (CPLR 3101[a],[b]). In this context, "material and necessary" is defined to include any facts that have a bearing on the action and serve to assist preparation for trial by sharpening the issues and reduce delay and prolixity (Allen v. Cromwell-Collier Publ Co., 21 NY2d 403, 406; Trimarco v. Data Treasury Corp., 59 AD3d 615). This includes evidence that might be used as evidence-in-chief, rebuttal or cross-examination at trial (Allen v. Cromwell-Collier Publishing Co., 21 NY2d at 407), as well as factual information which may not be admissible per se but may lead to the discovery of admissible evidence (see Matter of Southampton Taxpayers Against Reassessment v. Assessor of the Vil. of Southampton, 176 AD2d 795; cf. Matter of Niagara Mohawk Power Corp. v. City of Saratoga Springs Assessor, 2 AD3d 953). "The test is one of usefulness and reason" (Allen v. Cromwell-Collier Publ Co., 21 NY2d at 406). Thus, if there is any possibility that the information is sought in good faith for possible use as evidence, it should be considered "material". However, where a demand is palpably improper, i.e., where the material sought is not relevant to the issues, a party need not respond (Titleserv, Inc. v. Zenobio, 210 AD2d at 315). Accordingly, the burden of establishing relevance lies with the party seeking discovery, while the party opposing discovery has the burden of establishing that the material requested is irrelevant, privileged or confidential (see Friel v. Papa, 56 AD3d 607; Crazytown Furniture v. Brooklyn Union Gas Co., 150 AD2d 420).

Here, the City is seeking to (1) strike the complaint for plaintiff's failure to comply with both the Preliminary Conference Order and its discovery demands, or compel plaintiffs to comply; (2) preclude plaintiffs from offering any evidence at trial as to those items as to which the particulars have not been disclosed, or compel plaintiffs to supplement their bill of particulars and (3) allow the City to amend its answer to assert a cross claim for indemnification against co-defendant Scala and obtain additional discovery from both parties.

It is well settled law that preclusion and/or the striking of a pleading are harsh remedies not favored by the courts, and should only be imposed when the failure to comply with proper requests for disclosure can be characterized as willful and contumacious (Joe DeMartino Mason Contrs. & Sons, Inc. v. Main Plaza Realty, Co., 44 AD3d 716; Kingsley v. Kantor, 265 AD2d 529). Nevertheless, the nature of any penalty to be imposed under CPLR 3126 lies within the sound discretion of the Court (Comprehensive Care of NY, P.C. v. Manuel A. Romero, P.C.,

56 AD3d 510; see generally CPLR 3126).

With these criteria in mind, the Court will first examine those items in the Preliminary Conference Order to which plaintiffs are alleged to have failed to respond or responded inadequately. These include, (1) authorizations for the release of plaintiffs' employment records from 2004 to [*3]present; (2) the original purchase price of all items alleged to have been damaged or lost and (3) authorization for the release of records from the Travelers Insurance Company, plaintiffs' insurer.

As to Item No. 1, since plaintiffs have waived any claim for lost wages, their employment records are neither relevant or material. As to the remaining two items plaintiffs state that (1) all documents relating to the original purchase price of the items allegedly damaged or lost were destroyed when the house was demolished, and (2) the City has already been provided with authorizations to obtain plaintiffs' file from the Travelers Insurance Company in a letter dated September 28, 2006.

With respect to plaintiffs' bill of particulars, the City admits that many of its demands were satisfactorily answered, but maintains that the following demands were not, and that plaintiffs' refusal to provide responses on the ground of being overbroad and beyond the scope of a bill of particulars is mistaken. The demands in issue include the following: Item 5 - Identify all persons, acting on behalf of plaintiffs who, at any time prior to the demolition of the subject building, examined any architectural plans or drawings that related to the subject building. Identify all architectural plans or drawings that were examined; Item 6 - Identify all persons who performed and describe any work done in or around the subject building, including but not limited to cleaning, repairing, sealing, securing, or stabilizing the building, from January 1, 1972 until the building was demolished.Item 8 - Identify any real estate agent and/or buyer who was interested in offering for sale or buying the subject premises before its demolition. Describe actions taken to try and sell the premises. Identify all documents relating to the potential sale and why it did not go through.

Item 10 - Identify all other properties owned by plaintiffs since 1995 including a building on York Avenue in New Brighton, including [its] date of purchase, purchase price, date of sale, sale price and all violations against this property.Item 14 - State the original purchase price...of the items allegedly lost or damaged.Item 21 - Identify each natural person who was involved in any way in answering these demands and state the nature of his or her involvement.

As for the City's demand for discovery and inspection, plaintiffs objected to Demands Nos. 11-14 as duplicative of Demands Nos. 7-10; Demands Nos. 21-23 as over-broad and Demand No. 25 as violating an unspecified privilege. The pertinent demands are set forth below:

7.Produce all documents identified in response to Demand No. 6 reflecting either the substance or the payment for any work performed at the subject premises, from January 1, 1972 until the building was demolished, including, but not limited to cleaning, repairing, sealing, maintaining, altering, securing, and stabilizing the building.

8.Produce all documents in the possession of plaintiffs regarding the repair, sealing, securing, stabilizing or demolition of the subject building by the City of New York, Scala Contracting Co., or any other entity or person acting on its behalf.

9.Produce all violations issued by any governmental agency for the subject premises before the loss. [*4]

10.Produce all documents received by plaintiffs from the City for the subject premises on or before July 13, 2005 relating to violations, the subject building's structural stability, requests to vacate, proposed demolition activities, and notices to remove plaintiffs' items of personalty.

11.Produce all documents identified in and relevant to Demand No. 7.

12.Produce all documents identified in and relevant to Demand No. 8.

13.Produce all documents identified in and relevant to Demand No. 9.

14.Produce all documents identified in and relevant to Demand No. 10.

21.Produce all documents that plaintiffs intend to utilize at the time of trial to support any claim against [the] City defendant.

22.Produce all documents which reflect living costs as identified in Demand No. 19.

23.Produce all insurance policies for the subject premises from January 1, 1972 until the date this document request is answered that were identified in response to Demand No. 18 and any documents that reflect payments made since the demolition and the insurer's position on its liability after the demolition.

25.Produce all correspondence between plaintiffs and their insurers generated as a result of the claims for damages submitted pursuant to the insurance claims at issue.

Based upon a review of these discovery demands and plaintiffs' replies, the City has failed to show willful and contumacious conduct so as to warrant the extreme remedies of preclusion or the striking of the complaint (see Prappas v. Papadatos, 38 AD3d 871). This does not, however, mean that discovery is complete, or that plaintiff need not provide additional discovery as requested.

As to the preliminary conference order, plaintiffs are directed to provide an authorization for the release of their records from the Travelers Insurance Company.

As to the bill of particulars, plaintiffs are directed to provide a response to Item No. 8, and as to Item No.14, to the best of their ability, barring any further directions from this Court [FN2].

As to the City's demand for discovery and inspection, plaintiffs are directed to provide the information sought in the Demands numbered 11, 12, 13, 22 and 25. The balance of the City discovery requests in issue do not require a response as they fail to meet the criteria of meaningful discovery. In addition, plaintiffs are directed to supplement their bill of particulars and make themselves available for independent medical examinations and further depositions concerning their theory of liability based upon the alleged improper use of demolition debris for backfill at the premises following its demolition.

Finally, that branch of the City's motion which is for leave to amend its answer to assert a cross claim for indemnification against co-defendant Scala is granted (see CPLR 3025[b]; Edenwald Contr. Co. v. City of New York, 60 NY2d 957, 959). On the papers before this Court, any claim of surprise or prejudice on the part of any party to the assertion of this cross claim is unavailing (see Arcuri v. Ramos, 7 AD3d 741; Courageous Syndicate v. People-To-People Sports Comm, 141 AD2d [*5]599).

The City's further request for a bill of costs is denied.

Accordingly, it is

ORDERED that so much of the motion by defendant the City of New York which seeks preclusion or to strike the complaint is denied; and it is further

ORDERED that plaintiffs are directed to provide the responses required of them as directed in the body of this decision; and it is further

ORDERED that said responses shall be served upon defendants within 20 days after the service upon them of a copy of this Decision and Order with notice of entry; and it is further

ORDERED that leave is granted to the City to serve an amended answer asserting a cross claim for indemnification against co-defendant Scala Contracting Co; and it is further

ORDERED that the City's amended answer be interposed within 20 days after service upon it of a copy of this Decision and Order with notice of entry; and it is further

ORDERED that Scala Contracting Co. shall have 20 days after the service of the City's amended answer to serve any responsive pleading, and it is further.

ORDERED that in all other respects, the motion is denied; and it is further

ORDERED that the parties appear before this Court for a Compliance Conference on December 1, 2009 at 10:00 a.m.

ENTER,

_/s/_____________________

Hon. Thomas P. Aliotta

Dated: November 16, 2009J.S.C. Footnotes

Footnote 1:As the grounds asserted by plaintiffs in opposition to the motion concern only matters of privilege and the palpably improper nature of certain of the City's demands, CPLR 3122 is not a bar to relief (see Titleserve, Inc. v. Zenobio, 210 AD2d 314).

Footnote 2:It is undisputed that plaintiffs were given time to remove any items they desired before the demolition began.