Dion v Metropolitan Transp. Auth.

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Dion v Metropolitan Transp. Auth. 2012 NY Slip Op 30855(U) March 30, 2012 Sup Ct, NY County Docket Number: 104716/2011 Judge: Michael D. Stallman Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. UED ON41512012 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: Hon. MICHAEL D. STALLMAN PART 21 Justlce Index Number: 104716/2011 DION. MICHAEL 1 INDEX NO. vs. METROPOLITAN SEQUENCE NUMBER : 002 I MOTION DATE lQ4716111 12/1$/1 I 992 MOTION SEQ. NO. AMEND SUPPLEMENT PLEADINGS The followlng papew, numbered Ito Notlce of Motion- Afflrmatlon 8 were read on this motlon and cross motlon t o compel - Exhlblts A-G Notlce of Cross Motion-Afflnnation Exhlblta A-E IW s ) . I No(s). of Oood Falth - Afflrmatlon--- 3-5 IW s ) . c Affldavlt In Oppoaitlon - Exhlblts A-C Reply Afflrmatlon 1-2 - Exhlblts A-B; Supplemental Afflnnetlon I NO($). 7: B Upon the foregoing papers, it is ordered that this motion and cross motlon are decided in accordance with the annexed memorandum decision and order. w 0 z 3 7 Dated: I. Check one: ................................................................ 2. Check If approprlate: ............................ MOTION I : S 3. Check If appropriate: ................................................ u CASE DISPOSED n u GRANTED DENIED SETTLEORDER n NON-FINAL DISPOSITION n u GRANTED IN PART u OTHER 0 0SUBMIT ORDER 0DO NOT POST [7 FIDUCIARY APPOINTMENT 0REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 21 Plaintiff, - against THE METROPOLITAN TRANSPORTATION AUTHORITY, THE NEW YQRK CITY TRANSIT AUTHORITY, AND MANNING AND LEWIS EQUIPMENT, LLC, AND JAYGO, INC., Index No, 1047 16/20 11 Decision and W e E APR 0 4 2012 NEW YORK HON.MICHAEL STALLMAN, J.: D. comry CLERK S OFFICE In this action, plaintiff alleges that, on December 10,2010, he fell into a 14-inch gap between the edge of the platform and the third car of a downtown express train on the southbound platform of the 14* Street-Union Square Station. Plaintiff claims that as he attempted to boost himself up to .. the platform, a gap filler allegedly activated and rammed h m in the abdominal area, trapping him i for a period of approximately 30 minutes, causing massive internal injuries and multiple fractures. According to plaintiffs counsel, an independent contractor who was at the station was able to bleed the valves which controlled the gap filler mechanism to allow plaintiff to be removed. (Dankner Affirm. 7 3.) According to defendants counsel, Jerry Settler, an employee of Fresh Meadows, released the moving platform. (Henderson Affirm. 7 14.) Plaintiff alleged in the bill ofparticulars that he suffered, among other injuries, a comminuted fracture of the left acetabulum, fracture of the inferior left ramus, a fractured rib, fracture and joint 1 Plaintiffs counsel states that Settler is an employee of Fresh Meadow Electrical Contracts, LLC. (Dankner Suppl. Affim. 7 6.) [* 3] diastasis of L3 and L5, perforations and lacerations to numerous internal organs, including splenic and bowel lacerations, pulmonary emboli, post traumatic stress disorder, and emotional and psychological distress. (Dankner Opp. Affirm., Ex C. perified Bill of Particulars] 7 lo.) Plaintiff asserts two theories of negligence: (1) the failure to have any barriers, railings, barricades, or similar devices or systems to prevent subway patrons from falling off the platform or into the unusually large gap that exists at this particular station and especially where the plaintiff fell; (2) the gap filler mechanism lacked any sensing or safety mechanism to prevent activation and full extension in the event an object was located between the gap filler and a car of the train, lacked any buffer or malleable edge to cushion any impact with a person s body; the gap filler did not retract upon impact; there was no way to stop or retract the gap filler; there was no emergency stop button, lever, or other device that one could activate to retract the gap filler. (Verified Bill of Particulars 7 6 . ) During discovery, defendants counsel provided a contract between the New York City Transit Authority and S.N. Tannor, Inc., for retrofitting two gap fillers and furnishing and installing five new gap fillers for the 14thStreet-Union Square Station on the Lexington Avenue Line (IRT Division). @ankner Affirm., Ex A.) Plaintiffs counsel claims that, based on the contract, S.N. Tannor, Inc. hired defendants Manning & Lewis Equipment, LLC and Jaygo, Inc. as subcontractors on the project. Plaintiff now moves to amend the complaint to add S.N. Tannor, h c . as a defendant, and to compel defendants to respond to items 9,10,14,15,16 , 17, and 18 of plaintiffs notice for discovery and inspection dated June 14, 2011. Defendants cross-move to compel plaintiff to provide discovery as well. 2 [* 4] DISCUSSION I. Plaintiffs Motion A. Discoverv The Court agrees that items 9, 10, and 14 of plaintiff s notice for discovery and inspection are irrelevant. Here, plaintiff seeks: 9. All memoranda concerning the decision to install stanchion and chain barriers at the South Ferry station on the #1 and #9 lines. 10. All memoranda concerning any consideration to extend and make the Union Square/l4th Street Station so that the platform would be on tangent opposed to curved track. * + # 14. Time records for the week, inclusive of 12/10/10, for the employee referred to in paragraph 13. 2 (Dankner Affirm., Ex C.) Item 9 is irrelevant because the accident occurred at the 14* Street-Union Square subway station, not at the South Ferry station. As defendants counsel indicates, a decision as to whether the .. platform at the Union Square subway station should be extended bears on the design of the station itself, and not to an alleged design defect of the gap filler. Plaintiff s counsel only speculates that Clarance Smith did not conduct an inspection of the gap filler on the date of plaintiffs alleged accident, because the source of his belief appears to be news reports that New York City Transit Authority safety workers falsified records of their inspection of subway track signals. (Dankner Reply Affirm., Ex A.) Smith s inspection of the gap-filler mechanism at issue is not a routine signal inspection. According to plaintiffs counsel, the name of the employee demanded in paragraph 13 was Clarence W. Smith, pass number 832071. (Dankner Affirm. 7 14.) 3 [* 5] Items 15,16, and 17 of plaintiffs notice for discovery and inspection are overly broad. The Court exercises its discretion to narrow the discovery demands to a more reasonable period of time, and directs defendants to produce the following within 90 days: Any memorandum written between December 10, 2005 and December 10, 2010 discussing considered or proposed changes to the gap filler mechanism at the 14* StUnion Sq station, inclusive of sensor systems, emergency switches, activation, extension or retraction devices and material changes to any part of the gap filler itself; The names and addresses of all persons known to defendant New York City Transit Authority who allegedly sustained injury at the 14th Street-Union Square subway station where: (1) the injury allegedly resulted from a fall into a gap between the southbound express platform and train, at the place where the third car stops, and (2) the fall allegedly occurred between December 10,2005 and December 10,20 10; and any records during that period concerning malfunction or alleged injury caused by the subject platform extendedgap filler. Item 18 of plaintiffs notice for discovery and inspection is overly broad, irrelevant, and unduly burdensome. Here, plaintiff seeks the full caption of any lawsuit relating to injuries allegedly sustained as a result of falling into a gap at the 14* Street-Union Square subway station, and the name of each plaintiff s counsel. However, plaintiff allegedly fell in the gap between the southbound express train platform and the platform extender of the third car.) Injuries from falls into gaps on the northbound platform, where there are no platform extenders, are not relevant to this lawsuit. Injuries from falls into gaps between the southbound platform and the train that are not bridged by a platform extender are also irrelevant. Moreover, lawsuits are a matter of public record. Plaintiff s counsel can readily access, for example, the Unified Court System s free online case information services (i.e., WebCivil Local and WebCivil Supreme at http://iapps.courts.state. ny.us/webcivil/ecourtsMain) or access computer terminals at the County Clerk to search for lawsuits by name, with the information of persons which defendants has been directed to provide to plaintiff, 4 - [* 6] as discussed above. The Cowt directs both sides to exchange ,,le following, within 90 days: Any MTA or NYCTA memoranda during the period of December 2005 through December 2010, concerning any meeting with Richard Muller about a gap filler system which he patented, and any correspondence between MTA or NYCTA and Muller during the period of December 2005 through December 20 IO concerning his presentations and meetings, but only those memoranda and correspondence which pertain to the 14IhStreet-Union Square subway station. According to plaintiffs counsel, Muller patented a gap filler device which would have prevented it lplaintiff s accident] from occurring. Mr. Muller met with upper echelon officers of both the MTA and TA on various occasions at which time they showed a significant interest in utilizing his invention to prevent gap injuries. (Dankner Afflrm. 7 16.) Copies of correspondence between Muller and the MTA or NYCTA regarding his presentations and meetings are within the custody, possession, and control of both sides. Plaintiff has retained Richard Muller as an expert in this case: (Dankner Affirm, 7 16.) Thus, both sides are directed to search for such memoranda and correspondence, but only such memoranda and correspondence that pertain to the 14* Street-Union Square subway station. Plaintiffs counsel did not state on this motion when Muller purportedly met with the MTA or NYCTA. Because the demand is not limited in its scope as to time, the Court has narrowed the time period of the search to the five years preceding plaintiffs alleged accident. Finally, plaintiff seeks an order directing defendants to supplement their response to plaintiffs demand for the name and addresses of any person whom defendants claimed observed plaintiff staggering on the platform or drinking from a can of Budweiser beer, contained in plaintiffs combined demand dated June 6,201 1. (Dankner Affirm., Ex F.) Defendants response 5 [* 7] was nofie at this time. (Id., Ex G.) The Court agrees with plaintiff that defendants must supplement this response within 60 days after the completion of defendants depositions. As plaintiff points out, defendants did not respond to plaintiffs demand for all videotapes of the subject station taken by cameras or retrieved from monitors on the platform taken at any time which shows the plaintiff, or any surveillance tapes of the plaintiff, Michael Dion. Therefore, within 90 days, defendants are directed to search for and disclose any such video footage taken on the date of the accident, If none is found, or if no video footage w s taken or currently exists, a defendants shall provide an affidavit by a person having knowledge of the search and the circumstances of the use of any carnerdvideo device, and the disposition of videos. B,Leave to a m e d Leave to amend to add S.N. Tannor, Inc. as a defendant is granted Without opposition. .. II. Defendants Motion to Compel According to defendants, Plaintiff has refused to comply with virtually each and every discovery request including the NYCTA s First Combined Demands dated June 2,201 1. , . , the NYCTA s Second Demand for Discovery and Inspection ( D&I No. 2 )dated June 29,201 1 . . . ; and the NYCTA s Third Request for D&I (D&I No. 3) dated October 11,201 1 . . . (Henderson Affirm. 7 8.) Plaintiff asserts that (a) all valid discovery requests have been answered and responses served (b) those requests appropriately objected to . . . and not responded to are improper, irrelevant, blunderbuss, and border on (if not constitute) sheer harassment. (Dankner Opp. Affirm. 7 3.) Having reviewed defendants discovery demands and plaintiff s responses, some general 6 [* 8] observations are worth noting. Plaintiff did not comply with some demands because plaintiff objected to the demand, and so the Court must rule on the validity of these objections in deciding defendants cross motion. For other demands, defendants are simply dissatisfied with the amount of discovery that plaintiff provided. For example, defendants counsel seeks to compel plaintiff to provide photographs because plaintiff provided two diskettes, one of which contained a few photos. (Henderson Affirm. 7 7.) Where plaintiffprovided the discovery sought, an order to compel does not lie. Defendants unsubstantiated belief that plaintiff may be holding back responsive documents or other things is not a basis for compelling plaintiff to provide that which he has already provided. Finally, D&I No. 2 makes demands as to documents and things which you [plaintiffl may come into possession prior to trial. For the purpose of this cross motion, the issue is whether the documents or things sought were in plaintiffs custody, possession, or control at the time that the demand was made. (See Sumello v Intershoe Inc., 78 AD2d 796 [lstDept 19801r It is obvious that .. defendant cannot produce that which it does not possess and over which it has no ~ontrol.)~] for .) As documents and things demanded which might come into plaintiff s possession prior to trial, the Court need only reiterate that CPLR 3 101 (h) governs a p w s continuing duty to supplement a prior discovery response. (See e.g. Frenk v Frederick, 38 AD3d 593 [2d Dept 20071.) A. Defendant$ First Combined Demands dated June 2,201.1, Defendants combined demands dated June 2,201 1 appear to be boilerplate demands, some of which do not appear relevant to the issues of this action. For example, on this motion defendants seek plaintiffs school records and motor vehicle records, including plaintiffs license and 7 [* 9] registration, and any report%of motor vehicle accidents, but defendants do not explain how these records would be relevant to the issues of this action. Defendants request for an order compelling plaintiff to provide photographs in plaintiffs possession is denied as academic. Prior to the preliminivy conference, plaintiff objected to the demand and stated that photographs would be simultaneously exchanged pursuant to the terms of the preliminary conference order. (Henderson Affirm., Ex C.) However, defendants counsel states that plaintiff provided two diskettes containing photographs to defendants counsel. (Henderson A f f ~ mf 7.) Defendants counsel has not explained how plaintiff s production of photographs . constitutes a failure to comply with their demand. Plaintiff also responded to defendants demand for tax records by apparently producing copies of plaintiffs W-2s for years, 2007 through 2010, the only ones currently available. (Dankner Opp. Affirm., Ex B.) Defendants request for an authorization for pharmacy records relating to plaintiff s injuries claimed in this action is granted. Pharmacy records are not subject to the physician-patient privilege .. (Neferis Y DeStefano, 265 AD2d 464,466 [2d Dept 19991 [citing CPLR 4504 (a)].) Authorizations for pharmacy records do not appear in the list of medical authorizations that plaintiff s counsel provided to defendants. (Dankner Suppl. Affirm., Ex A.) Defendants request for a copy of plaintiffs Metrocard is denied. Defendants have not shown that a copy of plaintiffs Metrocard will provide defendants with any information that would be relevant to, or reasonably likely to lead to admissible evidence as to the issues of the action. As to an examination of plaintiffs actual Metrocard, this was discussed at the December 8,20 11 cowt conference without resolution. The matter of inspection and examination of plaintiff s Metrocard will be addressed again at the next compliance conference. 8 [* 10] B. DefendanQ Second Request for Discoy g y and Inmection C n&I 0.2 ) dated June 29, N D&I No.2 requested nine different categories of items, (Henderson Affirm., Ex B.) Plaintiff objected to items 1, 2, 3,4,6, and 9. (Id.,Ex C.)3 Item 1 demands the Wames and addresses of all witnesses and statements taken by your investigator or written out by the witness himherself now in your possession or which you may come into possession prior to trial. Plaintiff objected on the grounds of privilege, i.e., attorney work product and material prepared for litigation. Plaintiff further responded, The defendant possesses the names of witnesses and has presumably conducted its own interviews. Both sides are entitled to discovery as to the names and addresses of all witnesses to plaintiffs alleged accident. Plaintiff has not shown that defendants are already in possession of this information. Before plaintiff responded to defendants demand for the names and addresses and witnesses, defendants had already respond to plaintiff s demand for the same information, A d stated, . . None at this time. (Dankner Affirm., Ex G.) Therefore, plaintiff is directed to provide defendants with the names and addresses of any witness to plaintiff s alleged accident known to plaintiff or to plaintiffs counsel. As to witness statements, [w]itness statements taken by a party s counsel are subject to the qualified privilege for materials prepared in anticipation of litigation or for trial. (Vdencia v Obayashi Corp., 84 AD3d 786, 787 [2d Dept 201 11; Rojas v New York City Tr, Auth. , 276 AD2d 684 [2d Dept 20001 [ The written statement of an eyewitness to an accident is truly material prepared for litigation . . . and is qualifiedly exempt from disclosure ].) Therefore, defendants are Item 2 demanded photographs, which was requested in defendants combined demands. 9 [* 11] not entitled to copies of any witness statements that plaintiffs counsel obtained. However, the qualified privilege does not shield plaintiff from divulging the existence of any witness statements taken by or on behalf of plaintiffs counsel, because defendants may overcome this qualified privilege by demonstrating substantial need of the materials, and undue hardship. (CPLR 3 101 [d] [2].) Therefore, plaintiff must disclose the names of any person who made a statement, either orally or in writing to plaintiff s counsel or to someone acting on counsel s behalf. Item 3 demanded Any copies of You Tube videos of the accident, or any other videos in your possession of the accident or which may come into.possession prior to trial. Contrary to the argument of plaintiff s counsel, a notice for discovery and inspection is not limited only to document discovery. Item 6 of D&I No. 2 demanded any video footage of the accident taken by non-parties (such as television news team^).^ Defendants are entitled to discovery of any videos of the accident, which includes YouTube.com videos or video footage taken by non-parties (such as television news teams), now in plaintiffs possession, custody, or control, because such videos would involve .. plaintiff. (CPLR 3 101 [i].) If no such videos are in plaintiffs custody, possession, or control, then plaintiff shall so state. Item 4 demanded Any reports, memorandums, notes, statements of any person at the accident scene or which you may come into possession prior to trial. Plaintiff objected to this demand, stating, The defendant is already in possession of this material, one of which was voluntarily produced at the plaintiffs 50-H hewing. Moreover, such documents are a matter of public record and can be obtained by the defendant. According to plaintiffs counsel, Fox News or Channel 2 news covered the incident. (Dankner Suppl. Aff., Ex B.) 10 [* 12] - Although a party is not required to disclose that which is already in the demanding party s possession, plaintiff bears the burden of demonstrating that the particular document is already in the demanding party s possession. Thus, plaintiff may not assert a blanket objection. Neither has plaintiff established that all such materials are a matter of public record. Plaintiff incorrectly assumes that any reports, memorandums, and notes of any person at the scene would be made by a government agency. Therefore, plaintiff is directed to produce copies of any reports, memorandums, or notes obtained from any person at the accident scene on the date of plaintiffs accident, i.e., December 10,20 10, excluding any forms prepared by an employee of defendants or the City of New York which would be available to defendants. To the extent that defendants seek statements of persons at the scene made to counsel, this demand overlaps with item 1 of D&I No. 2, for which an objection of privilege was partially sustained. .. Defendants point out that item 7 their demand for authorizations for medical records specifically included a demand for drons authorizations to speak with treating physicians. Although plaintiff claims that authorizations for the release of medical records were provided, plaintiff has not shown that Arons authorizations were provided. Therefore, plaintiff is directed to provide defendants with A r m s authorizations for each provider for whom plaintiff provided an authorization for the release of medical records. Plaintiff complied with item 8 of D&I No. 2, which demanded Copies of all contracts presently in your possession as to the design or manufacture of the 14* Street-Union Square moving platform southbound express track executed in the last 10 years. Plaintiff responded, plaintiffs counsel is not in possession of such contracts, but has requested them from the co-defendants who 11 .. [* 13] have yet to produce them in response to a notice for discovery antinspection. (Henderson Affirm., Ex C.) Item 9 of D&I No. 2 demanded statements in your possession from any employee of Fresh Meadows or Jerry Settler, or my documents, reports, memorandums, correspondence as to Fresh Meadows contractual arrangements with either the NYCTA or a general contractor, or Manning & Lewis, or Jaygo Inc. Plaintiff objected to this demand as Attorney work product and material prepared for litigation. (Dankner Affirm., Ex A.) The burden of establishing that the documents sought are covered by a certain privilege rests on the party asserting the privilege. (Anonymous v High School for Envtl. Studies, 32 AD3d 353, 359 [1st Dept 20061.) Here, plaintiff s counsel does not explain how statements from FreshMeadow Electrical Contracts, LLC or Jerry Settler are materials which x e uniquely the product of a lawyer s learning and professional skills, such as materials which reflect his legal research, analysis, conclusions, legal theory or strategy. (HofSmman v Ro-Sun Manor, 73 AD2d 207, 2 11 [ 1s t Dept .. 19801.) However, as discussed above, Jerry Settler apparently released the gap-filler mechanism so that plaintiff could be removed from the gap between the platform and the train car, which means that Settler is a fact witness. Therefore, any oral or written statements that plaintiff s counsel obtained from this witness about the accident are privileged as material prepared in anticipation of litigation. Defendants request for %ny documents, reports, memorandums, correspondence as to Fresh Meadows contractual arrangements with either the NYCTA or a general contractor, or Manning & Lewis, or Jaygo Inc. is denied. Defendants have not explained how these documents are relevant 12 [* 14] or reasonably calculated to lead to admissible evidence as to the issues of this action. Nothing in the record implies that Fresh Meadow Electrical Contracts, LLC has a contract with Manning & Lewis Equipment, LLC or with Jaygo, Inc. C. Third RequesLfor Jl&I (D&I No, 3) dated October I 1 20 11. Plaintiff responded to this request. (See Dankner Opp. Affirm., Ex B.) For example, defendants demanded authorizations for any alcohol or drug treatment facility that plaintiff may have visited in the ten years prior to his alleged accident, and for authorizations for any mental health professional who treated plaintiff during the ten years prior to his alleged accident. Plaintiff s response was, No such treatment; therefore not applicable. Plaintiff afirmatively responded that no such treatment for alcohol, drug treatment, and mental health treatment WEE sought in the last ten years prior to the alleged accident. Therefore, plaintiff may not be compelled to provide authorizations for non-existent treatment. Plaintiff objected to providing authorizations for the general physician or internist whom * . plaintiff saw for the ten years prior to his alleged accident, on the ground that no exacerbation or aggravation of any prior condition is being claimed in this litigation. Plaintiffs objection is partially sustained. Plaintiff placed into controversy the condition of his pelvis, the lumbar vertebrae L3 and L5, his spleen, his bowel, and his lungs, which were allegedly injured as a result of the accident. (Verified Bill of Particulars 7 10.) Defendants are entitled to discovery to determine the extent, if any, that plaintiffs claimed injuries are attributable to causes or circumstances other than the alleged accident. (McGlons v Port Auth. ofNY& NJ, 90 AD3d 479, 480 [lst Dept 201 11; Rega v Avon Prods., Inc., 49 AD3d 329 [lst Dept 20081.) In the Cowt s view, five years prior to the date of plaintiffs alleged accident is a reasonable period for the scope of this 13 [* 15] discovery. (See Roca v Perel, 5 1 AD3d 757,761 [2d Dept 20081 [five years priorto the date that the plaintiff started treatment with the defendants was a reasonable period of time]; DeStrange v Lind, 277 A.D.2d 344 [2d Dept 20001 [court properly limited the defendants' access to the plaintiffs past medical records to the five-year period before the alleged acts of medical malpractice in controversy].) According to plaintiffs counsel, plaintiff's primary care physician is Dr. Susan Brundage. (Dankner Suppl. Aff. 7 4.) Therefore, plaintiff is directed to provide an authorization for Dr. Brundage for the release of records in the last 5 years prior to December 10, 2010 relating to complaints concerning plaintiffs pelvis, his lumbar region, his spleen, his bowel, and his lungs. CONCLUSION Accordingly, it is hereby ORDERED that plaintiff's motion is granted as follows: (1) Within 90 days, defendants are directed to search for and disclose any video footage taken by cameras or retrieved from monitors on the platform which shows the plaintiff, or any surveillance tapes of plaintiff, taken on the date of the accident. If none is found, or if no video footage was taken or currently exist, defendant shall provide an affidavit by a person having knowledge of the search and the circumstances of the use of any camerdvideo device, and the disposition of any videos or surveillance tapes; (2) Within 90 days, defendants shall produce: (a) Any memorandum written between December 10,2005 and December 10,2010 Stdiscussing considered or proposed changes to the gap filler mechanism at the 14th Union Square station, inclusive of sensor systems, emergency switches, activation, extension or retraction devices and material changes to any part of the gap filler itself; (b) The names and addresses of all persons known to defendant New York City Transit Authority who allegedly sustained injury at the 14th Street-Union Square subway station where: (i) the injury allegedly resulted from a fall into a gap between 14 -, [* 16] the southbound express platform and train, at the place where the third car stops, and (ii) the fall allegedly occurred between December 10,2005 and December 10,2010; and any records during that period concerning malfunction or alleged injury caused by the subject platform extendedgap filler; (c) Any MTA or NYCTA memoranda during the period of December 2005 through December 2010, concerning any meeting with Richard Muller about a gap filler system which he patented, and any correspondence between MTA or NYCTA and Muller during the period of December 2005 through December 2010 concerning his presentations and meetings, but only those memoranda and correspondence which pertain to the 14* Street-Union Square subway station; (3) within 60 days of completion of defendants depositions, defendants shall serve a supplemental response to plaintiffs counsel, stating the name and addresses of any person whom defendants claimed observed plaintiff staggering or drinking from a can o f . , . beer ; (4)plaintiff is granted leave to amend to add S.N. Tannor, Inc. as a defendant, by serving a supplemental. summons and amended complaint within 20 days of service of a copy of this order with notice of entry; and plaintiff s motion is otherwise denied; and it is further ORDERED that defendants cross motion is granted as follows: (1) Within 60 days, plaintiff shall provide: (a) authorizations to defendants for the release of records from any pharmacy where plaintiff obtained prescription medication for the treatment of the injuries claimed in this action; (b) the names and addresses of any witness to plaintiffs alleged accident known to plaintiff or to plaintiffs counsel; (c) the names of any persons who made a statement, either orally or in writing to plaintiffs counsel or to someone acting on counsel s behalf; (d) any video footage (including any YouTube.com videos or video footage taken by non-parties such as television news teams) in plaintiffs custody, possession or control depicting plaintiff within the 14* Street-Union Square subway station on the date of the accident; (e) copies of any reports, memorandums, or notes obtained from any person at the 15 , [* 17] accident scene on the date of plaintiffs accident, i.e., December 10,2010, excluding any forms prepared by a employee of defendants or the City of New York which n would be available to defendants; (0Arons authorizations for each provider for whom plaintiff provided an authorization for the release of medical records; (9) an authorization for Dr. Brundage for the release of records in the last 5 years prior to December 10,20 10 relating to complaints concerning plaintiff's pelvis, his lumbar region, his spleen, his bowel, and his lungs; (2) Within 90 days, plaintiff shall provide any MTA or NYCTA memoranda during the period of December 2005 through December 2010,concerning any meeting with Richard Muller about a gap filler system which he patented, and any correspondence between MTA or NYCTA and Muller during the period o f December 2005 through December 2010 concerning his presentations and meetings, but only those memoranda and correspondence which pertain to the 14" Street-Union Square subway station; and defendants' cross motion is otherwise denied; and it is further ORDERED that the parties are directed to appear for a compliance conference in IAS Part 21,80 Centre St Room 278 on July 12,2012 at 11 a.m. FILED APR 0 4 2012 Dated: M a r c h 3 2 2012 New York, New York 16 -

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