Torres v City of New York

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Torres v City of New York 2013 NY Slip Op 31286(U) June 13, 2013 Supreme Court, New York County Docket Number: 401896/2012 Judge: Kathryn E. Freed 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. SCANNED ON 611912013 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY - index Number : 401896/2012 TORRES, JUSTINA INDEX NO. VS. - CITY OF NEW YORK SEQUENCE NUMBER : 001 STRIKE A PLEADING A L *+ MOTION DATE MOTION SEQ.NO. # d. ? I The following papers, numbered 1 to , were read on this motion tolfor Notice of MotionlOrder to Show Cause -Affidavits - Exhibits IN o w Answering Affidavits - Exhibits - Replying Affidavits IN o w INo(4. Upon the foregoing papers, it is ordered that this motion is JUN 19 2013 COUNTY CL ¬RK S OFFICE NEW YORK Dated: / I JON k 3 2013 ..................................................................... 0 CASE DISPOSED CHECK AS APPROPRIATE: ........................... MOTION IS: [GRANTED :I : nDENIED CHECK IF APPROPRIATE: ................................................ SETTLE ORDER I CHECK ONE: . 2. 3. uDO NOT POST GRANTED IN PART nOTHER 0SUBMIT ORDER fl FIDUCIARY APPOINTMENT 0REFERENCE [* 2] Plaintiff, DECISION/ORDER Index No. 401 896/2012 Seq.No, 001 -againstTHE CITY OF NEW YORK and KIEWIT CONSTRUCTORS INC., PRESENT: Hon. Kathryn E. Freed J.S.C. RECITATION, AS REQUIRED BY CPLR42219 (a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION. PAPERS NOTICE OF MOTION AND AFFIDAVITS ANNEXED ................... ORDER TO SHOW CAUSE AND AFFIDAVITS ANNEXED............ ANSWERING AFFIDAVITS................................................................ REPLYING AFFIDAVITS.................................................................... EXHIBITS. ............................................................................................. OTHER.,................................................................................................. ......1-2.......... ...................... ...................... ...................... .......3-5 .......... ...................... UPON THE FOREGOING CITED PAPERS, THIS DECISIONlORDER ON THE MOTION IS AS FOLLOWS: Defendants move for an Order pursuant to CPLRs3 126, dismissing plaintiffs Complaint for failure to comply with discovery demands, or, in the alternative; pursuant to CPLRg3042,precluding plaintiff from offering evidence at the trial of this action as to matter of which particulars have been sought but not provided, or in the alternative, pursuant to CPLRg3 124, compelling plaintiff to comply with said discovery demands. No opposition has been submitted. After a review of the instant motion, all relevant statutes 1 [* 3] and case law, the Court grants said motion in part and denies it in part. Factual and procedural background: This is an action for the wrongful death of plaintiff decedent who on June 13,2009, fell from the southern approach to the Willis Avenue Bridge on the Manhattan side to the street below, and landed on the southeast corner of 12ShStreet and Marginal Street, in New York County. Plaintiff initially commenced this action in Bronx County Supreme Court against the City and Kiewit, indicating that the basis of venue was Location of Tort and Decedent s Residence. However, upon defendants motion, the venue ofthis matter was subsequently changed to New York Supreme Court. Plaintiff filed a Notice of Claim against the City on September 2,2009. Plaintiff then commenced the instant suit via the filing of a summons and complaint in Bronx Supreme Court on May 3,2010. Subsequently, defendants joined issue via the service of a verified answer on May 26,20 10. On July 13,2012, defendants requested that plaintiff serve responses to their respective demands. Furthermore, defendants have telephoned plaintiffs counsel reiterating their request for a response. To date, defendants have not received any response from plaintiff. Defendants argue that the time in which a Bill of Particulars and responses to discovery demands, other than the deposition notice, could be timely served has clearly passed. Additionally, plaintiff has failed to comply with discovery and has also failed to request an extension of time to comply. It is well settled that [tlhe nature and degree of the penalty to be imposed pursuant to CPLR 3 126 rests within the discretion of the Supreme Court ( see Raville v. Elnomany, 76 A.D.3d 520 [2d Dept. 20101, lv dismissed 16 N.Y.3d 739 [20I I]; Negro v. Sr. Charles Hosp. &Rehabilitation Ctr., 44 A.D,3d 727,728 [2d Dept. 20071; Rawlings v. Gillert, 78 A.D.3d 806 [2d Dept. 20101; Pinto v. 2 [* 4] Tenenbaum, 105 A.D.3d 930 [2d Dept, 20131 ). [Wlhen a party fails to comply with a court order and frustrates the disclosure scheme set forth in the CPLR, it is well within the Trial Judge s discretion [to dismiss a pleading] ( Kihl v. Pfeger, 94 N.Y.2d 118, 122 [ 19993 ). However, strong public policy favors the resolution of cases on the merits ( see Negro v. St. Charles Hosp. & Rehabilitation Ctr., 44 A.D.3d at 728 1, Moreover, the drastic remedy of striking an answer is inappropriate absent a clear showing that the failure to comply with discovery demands is willful or contumacious ( see Laskinv. Friedman, 90 A.D.3d 617,617-61 8 [2d Dept. 201 11;Nunez v. Long Is.Jewish Med Ctr.4chneider Children s Hosp., 82 A.D.3d 724 [ad Hosp. 20 111; H i Wah o Lai v. Mack, 89 A.D.3d 990 [2d Dept. 201 11; Polsky v. Tuckman, 85 A.D.3d 750 [2d Dept. 201 11). Willful and contumacious conduct may be inferred from a party s repeated failure to comply with court ordered discovery, coupled with inadequate explanations for the failure to comply (Savin v, Brooklyn Mar. Park Dev. Corp., 61 A.D.3d 954,954-955 [2d Dept. 20091, or a failure to comply with court ordered discovery over an extended period of time ( Pappas v. Papadatos, 38 A.D.3d 871, 872 [2d Dept. 20071; see also Russell v. BhB Industries, Inc., 309 A.D.2d 914,915 [2d Dept*20031 ). Under the circumstances of the case at bar, the Court finds that dismissal of the complaint at this time is unwarranted. The Court notes that while defendants have annexed the aforementioned letter to plaintiffs counsel as Exhibit D, this is not sufficient evidence that plaintiffs failure to comply can be classified as wanton and contumacious.y Indeed, there is no evidence that plaintiff disregarded any previous orders rendered by the court to comply with discovery or face the consequences. 3 [* 5] Therefore, in accordance with the foregoing, it is hereby ORDERED that the component of defendants' motion to dismiss plaintiffs complaint pursuant to CPLRS 3 126 or preclude plaintiff from offering evidence at trial as to matters of which particulars have been sought but not provided pursuant to CPLRg 3024, is hereby denied and it is further ORDERED that the component of defendants' motion pursuant to CPLR53 124 is granted to the extent that plaintiff is ordered to comply with all defendants' discovery demands, including a Bill of Particulars, within thirty days ( 30 days) of this order; and it is further ORDERED that upon plaintiff's failure to comply with this order shall result in the striking of its Answer; and it is further ORDERED that defendants shall serve a copy of this order on plaintiff and the Trial Support Office at 60 Centre Street, Room 158; and it is further 45 Hon. Kathryn E. Freed COUNTY CLERK'S OFFICE NEW YORK 4

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