Marino v Best Yet Mkt. of Farmingdale, Inc.

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Marino v Best Yet Mkt. of Farmingdale, Inc. 2012 NY Slip Op 31397(U) May 9, 2012 Supreme Court, Nassau County Docket Number: 6756/09 Judge: Michele M. Woodard Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. -- -- -- -------- --- - - - ---- ----- -- -- -- ---- ---- --- - ----- -- --- - ----- --- ------ - [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU UMBERTO M. MARIO and ELISABETTA MARIO, MICHELE M. WOODARD Plaintiffs TRIAL/IAS Par 8 -against - Index No. : 6756/09 Motion Seq. No. : 02 BEST YET MARKET OF F ARMING DALE , INC. , BEST YET MARKET , INC. and SID FARBER ENTERPRISES LLC Defendants. -------------------------------------------------------------------------)C DECISION AND ORDER Papers Read on this Motion: Plaintiffs Notice of Motion Defendant Best Yet's Opposition Defendant Sid Farber s Enterprises Opposition Plaintiff s Reply )C)C )C)C )C)C 3126 precluding defendants Best Yet Market Plaintiffs move for an order pursuant to CPLR Inc. and Best Yet Market of Faningdale , Inc. (hereinafter referred to j oindy as " Best Yet" ) from offering the testimony of Walter Klatt , related to Klatt' s Januar 12 , 2009 observations of the condition ofthe subject ramp on which pIaintiffUmberto M. Marino fell , and observations of and interactions with Umberto M. Marino. The plaintiffs also seek an order precluding the defendants from introducing or using on motion or at trial the recorded interview of plaintiff take on Januar 16 , 2009. The defendants oppose the motion. Plaintiff Umberto Marino tripped and fell while descending down a ramp in a parking lot abutting the Best Yet supermarket in Farmingdale , New York. Best Yet leased the store and parking lot from defendant Sid Farber Enterprises (hereinafter referred to as " Sid Farber ). As a result ofUmberto Marino s fall , he suffered a broken nose and fractured right shoulder. He has undergone multiple surgeries related to his injuries. In this action , he seeks to recover monetar damages for his injuries arguing that the defendants were negligent in the maintenance of the ramp. The plaintiffs requested accident and incident reports from Best Yet prepared by its agents servants , representatives or employees , on three separate occasions. The first time was by serving a Notice of Discovery and Inspection and Combined Demands , dated September 14 2009 , on the defendants. Best Yet served a response on December 14 , 2009 to the combined demands wherein it Page 1 of 4 [* 2] indicated that it was not in possession of any statements taken from the plaintiff. Best Yet did not respond to the demand regarding accident and/or incident reports. Best Yet responded to the plaintiffs inquiry regarding whether a witness e)Cisted by replying that it was determining whether or not a witness e)Cists. The second time was on March 10 2012 , by letter. The plaintiffs demanded any recorded or signed statement ofUmberto Marino. Best Yet did not respond to the letter. The third time was on April 6 , 2010 , at the Preliminar Conference of the matter. The paries stipulated that any statements of the opposing pary and accident reports prepared in the regular course of business were to be e)Cchanged on or before May 15 2010. On June 3 , 2010 , Best Yet served a response related to the Plaintiffs ' discovery demands. Best Yet disclosed the transcript of a recorded interview of plaintiffUmberto Marino taken over the phone by Best Yet's Insurance Carrier , Libert Mutual Insurance Company. On June 8 , 2010 Best Yet served an amended response to the combined demands indicating that it was conducting a search regarding witnesses to the accident and the e)Cistence of an accident report. On June 10 , 2010 , Best Yet served a response to the plaintiffs previously served discovery request indicating that it was not in possession of anY incident or accident reports relating to the subject occurence. On November 4 2010 , Best Yet's store manager Walter Klatt' s deposition was held. He testified that he prepared an accident report on either the day the accident occured or the ne)Ct day. Klatt testified that he spoke with the plaintiffUmberto Marino to obtain information necessar to complete the report and completed the digital report on a Best Yet computer in the Faringdale store. Klatt testified that he completed the report as par of Best Yet' s policy as to what to do so in the event of an accident/incident. He fuher testified that he had been trained by a Best Yet manger on how to complete the report. Klatt testified that he did not remember what information was requested in the report and that a representative from the insurance company called him after he submitted the report to ask him questions about the report. He testified that he did not print out a copy of the report. On March , 2011 , the plaintiffs renewed their demand for a copy of the accident report. On March 14 , 2011 , at the Court Certification Conference , the Cour directed that Best Yet provide the plaintiffs with a copy of the accident report by April 15 , 2011. On March 14 2011 , Best Yet forwarded a letter to the plaintiffs indicating that its Insurance Company, Libert Mutual Insurance Company, was not in possession of the accident report. The plaintiffs argue that not having access to the report generated by Klatt and sent to Libert Mutual online immediately following the accident , deprives the plaintiffs of the opportunity to question Klatt regarding his contemporaneous observations of the location and Page 2 of 4 [* 3] conditions surrounding plaintiff Umberto Marino s fall. In opposition to the plaintiffs ' motion , Best Yet argues that it provided the plaintiffs with a copy of the transcript from the audio tape of the plaintiff taken immediately after the accident within si)C months of the plaintiffs initial request. Regarding the accident report which Klatt testified to submitting on- line to the insurance company, Best Yet has submitted the affdavit of Libert Mutual Claims representative Michael Morrissiey. Mr. Morrissiey indicates in his affidavit that he made inquiries about an accident report sent to Libert Mutual by Best Yet and has been informed that no report e)Cists. Additionally, Best Yet argues that the audio tape of the plaintiff was tured over to the plaintiff as soon as it was discovered. Defendant Farber argues that in the event a report from Klatt to Libert Mutual should manifest , Farber should not be precluded from using it at trial because Farber never had any control over the subject report and Farber did not deprive plaintiff of the opportunity to review said report. Farber argues that any adverse action against him related to the discovery sought by the plaintiff would be unwaranted , unjust and would be highly prejudicial to him as he has complied with plaintiff s demands as such demands refer to him in this matter. If the report that Klatt made to Best Yet's Insurance Carier e)Cisted , it would not be discoverable. There is a shar distinction between accident reports which result from the regular internal operations of any enterprise , authority or business and those which are made or produced in connection with the report of an accident to a liability insurer. The latter constitute , at a minimum , material prepared for litigation which is conditionally e)Cempt Metropolitan Transportation Authority, AD2d 700(2d Dept 1983); from disclosure under. 99 AD2d 530 (2d Dept 1984); Weiser Krakowski 90 AD 2d 847 (2d Dept 1982); (Wiliams CPLR ~3101(d) Schneider, 94 Schneider Vernet Gilbert, 90 AD2d 846(2d Dept 1982)). The reports requested by the plaintiffs cannot be construed as being anything other than reports made by the defendants in this matter to its liability insurer and are thus , e)Cempt from discovery. Based on the Cour' s determination that if the report e)Cisted , it not being discoverable , the plaintiffs application to preclude Walter Klatt from testifying about his observations of the condition of the subject ramp where Umberto Marino fell and Klatt' s observations of and interactions with the Umberto Marino is denied. The delay in Best Yet providing the transcript of the plaintiff s interview was not so long as to Page 3 of 4 ,.. [* 4] cause any prejudice to the defendants. Best Yet was in possession of the interview transcript well before the depositions of any paries in this matter , which allowed the plaintiffs adequate time to investigate the statements in the interview , prepare their witnesses and question the defendants from an informed position. Additionally, the defendants had substantially responded to the plaintiffs ' other discovery demands with the e)Cception of producing a copy ofUmberto Marino s recorded interview. Furhermore , the defendants indicated that a search was in process for the information being sought. The plaintiffs did not demonstrate that the defendants ' conduct in failng to provide certain information which was unavailable to it was wilful , contumacious , or in bad faith to warant any sanction from the Cour (see Remuneration Planning Servs. Corp. v. Moreover , the defendants proffered a reasonable e)Ccuse, carier , for the short delay in complying with the Mary s Hosp Brown 151 AD 2d 268 (1 st Dept 1989). Berg that it was conferring with its ' insurance Preliminar Conference Order (see, Cruzatti v. St. 193 AD 2d 579 (2d Dept 1993)). As such , the plaintiffs ' application to preclude Best Yet from using the recorded interview of the Umberto Marino at trial and directing a negative inference at trial is denied. ORDERED, the paries are directed to appear before the undersigned on May 16 2012 at 9:30 m. for a certification conference in this matter. This constitutes the Decision and Order of the Cour. DATED: May 9 , 2012 Mineola, N. Y. 11501 ENTER: HON. MICHELE M. WOODARD F:\Marino v Best Yet Market ofFaringdale, wpd INTERED MAY 14 2012 NAaUO COUNTY COUNTY CLERK' S OFFIC! Page 4 of 4

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