Williams v New York City Tr. Auth.

[*1] Williams v New York City Tr. Auth. 2010 NY Slip Op 50011(U) [26 Misc 3d 1207(A)] Decided on January 5, 2010 Supreme Court, Kings County Miller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 5, 2010
Supreme Court, Kings County

Aldena O. Williams and JOAN ALEXANDRIA BRUCE as Co-Administratrices of the Estate of RONALD E. WILLIAMS, Deceased, and ALDENA O. WILLIAMS, Individually, Plaintiffs,

against

New York City Transit Authority and METROPOLITAN TRANSPORTATION AUTHORITY, Defendants.



34808/05



The plaintiffs are represented by Gregory J. Cannata & Associates by Gregory J. Cannata, Esq., Angelina L. Adam, Esq., and Allen D. Springer, Esq., of counsel, the defendant New York City Transit Authority is represented by Wallace D. Gossett, Esq., by Lisa E. Hodes- Urbont, Esq., and Steven S. Efron, Esq., of counsel.

Robert J. Miller, J.

In this wrongful death action, plaintiffs alleges that on June 7, 2005, their decedent, Ronald Williams, a subway passenger, fell asleep on a train which subsequently entered a subway yard after the last public stop and he thereafter fell from a subway car and was struck and killed by a train.

Plaintiffs move to strike the defendant New York City Transit Authority's (NYCTA) answer for failure over a three year period to produce data from the Event Recorder Box (ERB) from the train.

The data from the ERB would allegedly reveal the physical movements and stoppages of the train in all directions on the date of the accident much like a black box on an airplane.

On September 29, 2009, this Court granted the motion only to the extent of directing the parties to appear for a hearing on October 26, 2009.

On October 26, 2009, a hearing was held and the Court heard the testimony of Richard Dyner, Alfred Harvey, both maintenance supervisors for the NYCTA, Alan Mendelsohn, a NYCTA investigator and Lisa E. Hodes- Urbont, Esq., an attorney for the NYCTA.

It is instructive to review the history relating to plaintiffs' efforts to obtain data from the ERB.

On October 31, 2006, a Pre-Calendar Order was entered which required the production [*2]of all accident reports including "all forensic testing reports" and other reports relating to the "condition of train operation" . The NYCTA failed to respond to the October 31, 2006 Order. While the response was still outstanding, plaintiffs served a April 10, 2007 Discovery Demand (the Discovery Demand) for production specifically of the data from the ERB.

The NYCTA failed to respond to the Discovey Demand. Thereafter, plaintiffs moved to compel compliance with the Pre-Calendar Order and the Discovery Demand. On April 2, 2008, this Court directed the NYCTA to respond to both requests within (45) forty five days. The April 2, 2008 Order also directed the NYCTA to pay a $250.00 sanction within (30) days for failure to appear for two scheduled depositions. (Apparently, the NYCTA ignored this direction and never made payment.) On July 21, 2009, the NYCTA responded to the Discovery Demand and produced a one page document of data from the ERB for the wrong time period.

Plaintiffs' counsel advised the NYCTA that the information provided was not responsive. In March 2009 for the first time, the NYCTA advised plaintiffs that the data could not be produced because it was lost in a computer crash.

Plaintiffs then made the instant motion to strike the NYCTA's answer and the Court set the October 26, 2009 hearing.

On the Friday, October 23, 2009 before the hearing, the NYCTA produced a (19) nineteen page document purporting to be the "Event Recorder Download and Data Table". However, it was determined immediately prior to the start of the hearing that this data was not complete or correct. The hearing was conducted. During the hearing, it was established that the NYCTA was in possession of the data but through inadvertence the wrong data was provided. The parties agreed that the correct data would be provided and the Court was advised that the correct data from the ERB was finally produced on November 10, 2009, which is three years after the Pre-Calendar Order, two and a half years after the Discovery Demand and one and half years after this Court directed it production.

A review of the testimony establishes that if the NYCTA had exercised due diligence or any diligence, this entire discovery dispute could have been avoided and the vast expedition of time by the parties and the Court would have been saved. Mr. Dyner testified that normally data from the ERB is preserved for 2 ½ days and that "it would be overwritten" (T20).[FN1] However, in the event of a incident similar to the one in this case which is called "a 12-9 or man under" by the NYCTA, a different procedure is followed (T21). "The train is immediately, usually it is brought in house.... the event recorder is down loaded immediately, so you don't lose that data" (T23).

Dyner testified the data is downloaded on to a laptop. The data is preserved on the hard drive of the laptop and to a floppy disc and then "would be put into the download computer" (T 24-25).

Since the laptops had limited hard drives, the information would get erased off the laptop (T26).The download computer crashed "somewhere around August 08 (T29). In an attempt to locate the data, Mr. Dyner "searched everywhere" through floppy disks and the laptops (T30).

Dyner testified that the first time he was asked to search for the data from the ERB was after the download computer had "crashed and had been crashed for a while" (T27) i.e. August, 2008. [*3]

If the NYCTA had made attempts to locate the data at the time of the Pre-Calendar Order or at the time of the Discovery Demand or in response to the April 12, 2008 Order, the data would have been readily available for production. There has been no valid reason offered for the NYCTA's failure to conduct such a search as required by the CPLR and the Order of this Court.

Apparently, the data was finally produced by mere happenstance. Dyner testified as follows:

A. Ms. Urbont came to the facility and she had asked, you know,

if we could — and, this was not too long ago. Now, we just got a

new A.G.M., which is now what we call what the superintendent

used to be. Because Charlie just retired. David just came in.

Q. David who?

A. David Ortiz. He used to work there as a deputy of inspections.

During one of his back-ups of the computer for his inspection records,

he caught it on one of his disks so he didn't know it. When Ms. Urbont—

Q. Urbont?

A. — had asked, he said he would look through his collection to see if

he could actually, you know, find it. Because David is, David kept a

very good, you know, he is very good just at what he does. And, he

actually did uncover it. He actually did undercover the download.

Q. Do you know where those disks were located?

A. He actually had them just at his house. Because like a lot of us, we work at home too.

The lack of procedure by the NYCTA in cases involving the death of passengers is troubling and evinces a disregard by the NYCTA for its obligation to preserve evidence under the CPLR. Mr. Dyner testified as follows:

A. Did they make a copy of what data?

Q. Of a download computer data.

A. They might have made something that was interesting to them.

I don't know. Or, they might have added something on the

computer and knocked it off. Hard drives back then were small.

They are not like they are today.

Q. My question, sir, is was there a copy made of a hard drive?

A. No.

If it was not for the work of a transit supervisor who on his own initiative backed up the data from the download computer and than took the back- up floppy disks home for safe keeping , the data from the ERB relating to the death of the decedent in this case would have been lost forever.

Mr. Mendelson, the NYCTA investigator, testified that he was asked in November of 2008 for the first time to locate the data from the ERB by NYCTA's attorney Lisa E. Hodes- [*4]Urbont, Esq., 1 ½ years after the Discovery Demand and six months after the Court's April 2, 2008 Order directing production.

Ms. Hode- Urbont, Esq. testified and acknowledged receipt of the Discovery Demand and not responding to the Demand until the April 2008 Court Order when a "single page" (T100) was produced. Since it became apparent to her that the one page demand was not a responsive document, Ms. Hodes-Urbont asked for Mr. Mendelson's assistance for the first time in November 2008.

Finally in preparation for the October 26, 2009 hearing, she visited the transit yard. Ms. Hodes-Urbont testified as to the discovery of the data as follows:

Q. How was it that the data were ultimately discovered in

this month? Can you explain it?

A. Was really a fluke. I went up there to prepare Ricky and try

to find the ones who would testify as to the procedures of what

they do with downloads and whatever. And, when I got up there,

I met David Ortiz for the first time and actually met Rick Dyner for

the first time. And we were talking about this download, I was up there

with Mr. Vanclief and they mentioned that it's possible that David Ortiz

might have it on a disk in his home or it could be somewhere else. But

he would look, and I was there all day long. And, he was going to go

home right then and there and get it for me. But, then, we decide that

he would just e-mail me. And, that was a week ago Monday. On Tuesday.

E-mailed him and asked him if he was able to go through any his disks or

C.D.s and see if he found it. And, he responded on Wednesday, saying that

I'm in luck. So I was very happy to finally have it.

So after numerous motions, years of delay and the expenditure of countless hours, the data was found by a "fluke". The NYCTA was in "luck."Mr. Ortiz had the information stored "on a disk in his home". (T-108).

The record demonstrates that the NYCTA made no good faith efforts to locate the data on the ERB at the time of the Discovery Demand, or in response to the April 2, 2008 Order

directing its production. The record further establishes that if the NYCTA had fulfilled its obligation under the CPLR to timely respond to the Discovery Demand or the April 2, 2008 Order, the data was readily available on the "download computer" which didn't crash until August 2008.

The NYCTA argues that its answer should not be struck nor sanctions awarded as there has been no showing that their failure to produce the data was "wilful or malicious" nor that they have engaged in " a pattern of dilatory and obstructive conduct". They further argue that the data was sought to support a new theory of liability which is "belied by the data from the event recorder".

The arguments advanced by the NYCTA are not supported by the record or made in good [*5]faith.

First, it is a matter of semantics to claim that a failure even to first attempt to locate the data 1 ½ years after it is requested is not wilful. If the actions were not wilful, they were inept and evinced a total disregard for the NYCTA's discovery obligations under the CPLR. The record clearly established a

pattern of dilatory conduct. The failure to respond to the Discovery Demand for over one 1 ½ years, and then producing a one page, admittedly, non-responsive document was clearly dilatory and obstructive conduct.

Finally, if the Court understands the argument, the NYCTA for the first time in its post hearing brief, appears to argue that the requested data is not relevant because it supports an un-pleaded theory of recovery. First, the NYCTA never moved for a protective order with respect to the Discovery Demand and secondly, the data is clearly relevant to support the theory of recovery plead in the Notice of Claim.

Finally, the NYCTA argues that it should not be sanctioned because the data belies plaintiffs theory of the case and supports the NYCTA's position.

The Court finds that the NYCTA's argument establishes that the data is relevant and that the failure to produce it when requested has had a prejudicial effect on both plaintiffs and the NYCTA.

Relief under CPLR § 3126 is clearly warranted to deter the NYCTA and other parties from ignoring discovery demands and court orders. (Ingoglia v Barnes & Noble, 48 AD3d 636 [2d Dept 2008].) Since the missing evidence has been finally produced, striking NYCTA's answer is not the appropriate sanction. A monetary sanction is appropriate under these circumstances. (CPLR § 3126, Deans v Jamaica Hosp. Medical Center, 64 AD3d 744 [2d Dept 2009].)

Plaintiffs have requested $18,536.00 representing 14.50 hours of partner time at $457.00 per hour and 41.50 hour of associate time at $287.00 per hour. Since plaintiffs' attorneys were retained on a contingency basis and did not maintain billing records, they have made a good faith effort to estimate their hours and have utilized a National Law Journal survey for 2009 average hourly billing rates to set their hourly rate.

The Court finds that the hours expended are reasonable and awards fees as follows: utilizing an hourly rate of $350.00 per hour for partner time and $250.00 for associate time, the partner's portion is $5075.00 (14.5 hours x $350) and the associate's portion is $10,375.00 (41.5 hours x $250.00) for a total of $15,450.00. The Court also awards costs of $500.00 for a total award of $15,450.00.

The NYCTA shall pay $15,450.00 to plaintiffs' attorney within twenty (20) days of receipt of this order with notice of entry. If the payment is not made, the plaintiffs may renew their motion to strike NYCTA's answer.

The foregoing constitutes the decision and Order of the Court. [*6]

_______________________

Robert J. Miller

J.S.C.

January 5, 2010 Footnotes

Footnote 1: Reference to the October 26, 2009 hearing transcript are identified as "T".