De La Cruz v New York Palace Hotel

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De La Cruz v New York Palace Hotel 2012 NY Slip Op 32325(U) September 4, 2012 Supreme Court, New York County Docket Number: 103034/2010 Judge: Eileen A. Rakower 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. lNED ON 911012012 [* 1] - SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART i-q Justlco - Index Number : 103034/2010 DELACRUZ, FATIMA INDEX NO. vs. MOTION DATE N.Y. PALACE HOTEL SEQUENCE NUMBER : 008 ORDER OF PROTECTION The followlng papers, numbered Ito MOTION SEQ. NO. , were read on thla motlon tolfor Notlce of MotlonlOrder to Show Cause - Affldavitr Answering Affldavltn - Exhlbltn IN W IN O W IN O W . - Exhiblta Replylng Affldavlts Upon the forsgolng papers, It I ordered that this motlon Is s Lu 0 E ) 2 z P B . * w K *3 j0 z 3 E3 P i q :? w e 2 0 8E EE , J.S.C. Dated: 1. CHECK ONE: ..................................................................... 2. CHECK AS APPROPRIATE: ........................... 3. CHECK IF APPROPRIATE: MOTION IS: ................................................ M. e t u m A. RAK- 0 CASE DISPOSED GRANTED 0DENIED SETTLE ORDER DO NOT POST NON-FINAL DISPOSITION GRA IN PART 0OTHER 0SUBMIT ORDER FIDUCIARYAPPOINTMENT REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 15 X FATIMA DE LA CRUZ, Plaintiff, Index No.103034/10 Decision and Order - against Mot. Seq. 08 NEW YORK PALACE HOTEL, DORCHESTER SERVICES, INC., ALLSTATE OVERHEAD GARAGE DOORS, INC., ACME ROLLING STEEL DOOR, CORP. ARCHDIOCESE OF NEW YORK, Defendants. X Third-party Index No.: AMEDEO HOTELS, LTD d/b/a NEW YORK 5 90674/ 10 PALACE HOTEL, Third-party Plaintiff, -againstMICHAEL SKURNIK WINES, INC. Third-party Defendant. ____-__------_______--------------------------------------------X Second Third-party ACME ROLLING STEEL DOOR COW., Second Third-party Plaintiff, Jndex No.: 590835/10 -againstMICHAEL SKURNLK WINES, INC. ----________-__rl---_________I__________----------------------- r----______"-____lr-_____________II__c__------------------------ Plaintiff Fatima De La Cruz brings this action to recover money damages for personal injuries allegedly incurred in a freight elevator accident at the New York 1 [* 3] Palace Hotel, located at 455 Madison Avenue in the County and State of New York, on November 6, 2007. Plaintiff claims that while in the course of her employment, she was making a delivery at the New York Palace Hotel, and that she sustained personal injuries when she was struck by a closing screedgate as she entered the hotel s freight elevator. Fourth third-party defendant Otis Elevator ( Otis ) presently moves for a protective order pursuant to CPLR 93 103 to vacate or modify plaintiffs notice for discovery and inspection, dated May 10,2012, and for a confidentiality order with regard to any trade secret materials that are to be disclosed. Plaintiff cross moves pursuant to CPLR $43 124 and 3 126 compelling Otis to respond to its notice. CPLR $3103(a) provides that the court may ... on motion of any party...make a protective order denying, limiting, conditioning or regulating the use of any disclosure device in order to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice . . . . CPLR 53 101(a) generally provides that [tlhere shall be full disclosure of all matter material and necessary in the prosecution or defense of an action. The Court of Appeals has held that the term material and necessary is to be given a liberal interpretation in favor of the disclosure of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity, and that [tlhe test is one of usefulness and reason (Allen v. CromwellCollier Publishing Co., 21 N.Y.2d 403,406 [1968]). During the pendency of this motion, counsel for Otis and plaintiff entered into a stipulation and order of confidentiality. In his reply affirmation, Otis counsel John A. McCarthy states that this does not resolve the confidentiality issues because counsel for all of the parties have not executed the stipulation. In addition, after Otis filed its motion, plaintiffs counsel, by letter dated June 19, 2012, also agreed to narrow plaintiffs demands to the following requests: 1. Any and all records demonstrating the inspection, repair, testing or installation of the Slimscreen light curtain and the elevator cab gate (and its controller) for the period of two years prior and one year after the incident); 2. A listing of all components comprising the elevator at issue, including the slimscreen and cab gate, at the time Otis entered into the maintenance contract 2 . [* 4] for this elevator; 3. The production of Jimmy Bennett for an EBT and all documents used or referred to by Jimmy Bennett in connection with his May 13,2007 inspection of the elevator; and 4. All documents used in the drafting of the On-Line History Report involving the May 13,2007 inspection of the elevator. Mr. McCarthy states that the letter was presented to him by plaintiffs counsel at court at the June 19,2012 compliance conference and objects to these demands as overly broad and improper. As to plaintiffs demand for records demonstrating the inspection, repair, testing or installation of the Slimscreen light curtain and the elevator cab gate (and its controller) for the period of two years prior and one year after the incident), Otis states it has already provided service records for the nine months prior to the alleged incident. Otis objects to records for a time period greater than nine months prior, and also as to any post-accident. It is well settled that evidence concerning post-accident repairs is generally inadmissible absent certain exceptions and is never admissible as proof of admission of negligence. (Fernandez v. Higdon EZevator Co., 220 A.D. 2d 293 [ 1st Dept 19951 (citation omitted)). As to plaintiffs demand for [a] listing of all components comprising the elevator at issue, including the slimscreen and cab gate, at the time Otis entered into the maintenance contract for this elevator, Otis objects on the basis that this is an improper request and subjective. Otis states that plaintiff s counsel and expert have previously inspected the elevator and can make his or her own list of components. As to plaintiffs demand for [tlhe production of Jimmy Bennett for an EBT and all documents used or referred to by Jimmy Bennett in connection with his May 13,2007 inspection of the elevator, Otis states that it has already agreed to produce Mr. Bennett for deposition. As for the request for documents, Otis counsel states that he has advised plaintiffs counsel that the chances are remote that Mr. Bennett utilized any documents at all, or even referenced any [documents] and that Mr. Bennett can address any documents he may have used at his deposition. As to plaintiffs demand for [all1 documents used in the drafting of the On-Line History Report involving the May 13, 2007 inspection of the elevator, Otis counsel states 3 [* 5] that it advised plaintiffs counsel that that there should be no documents used in the drafting of the report. Plaintiff is entitled to these documents requested in these two demands to the extent that they exist prior to Mr. Bennett s deposition, and Otis is obligated to produce them or to state with certainty if there are none. Accordingly, while Otis has demonstrated a basis to limit and modify certain of plaintiffs demands, it is directed to comply with other demands. Wherefore it is hereby, ORDERED that fourth third-party defendant Otis Elevator Company s motion for a protective order and plaintiff Fatima De La Cruz s cross motion to compel is granted that Otis is directed to provide [alny and all records demonstrating the inspection, repair, testing or installation of the Slimscreen light curtain and the elevator cab gate (and its controller) for the period of two years prior to the alleged accident to the extent not previously produced; and it is further ORDERED that plaintiff Fatima De La CIUZ S demand for [a] listing of all components comprising the elevator at issue, including the slimscreen and cab gate, at the time Otis entered into the maintenance contract for this elevator is stricken as an improper disclosure request; and it is further ORDERED that fourth third-party defendant Otis Elevator Company shall produce all documents used or referred to by Jimmy Bennett in connection with his May 13,2007 inspection of the elevator and all documents used in the drafting of the On-Line History Report involving the May 13,2007 inspection of the elevator ten days prior to the Jimmy Bennett s deposition to the extent that they exist; and it is further ORDERED that to the extent that any party alleges that requested discovery contains confidential or proprietary information and seeks a protective order, the moving party is directed to submit the requested discovery, along with a privilege log, to the Court for in camera review, with the motion for a protective order. This constitutes the decision and order of the court. All other relief requested is denied. 4 [* 6] DATED: 9 I.l I, L EILEEN A. RAKOWER, J.S.C. 5 \

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