Asim v City of New York

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Asim v City of New York 2013 NY Slip Op 33661(U) January 25, 2013 Sup Ct, Bronx County Docket Number: 303982/08 Judge: Larry S. Schachner Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] FILED Jan 31 2013 Bronx County Clerk SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX - PART IA3 ----------------------------------------------x CELESTE ASIM, Plaintiff, - against INDEX NO. 303982/08 THE CITY OF NEW YORK, METROPOLITAN TRANSPORTATION AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY, MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY and JOHN DOE, DECISION/ORDER Defendants. ----------------------------------------------x HONORABLE LARRY S. SCHACHNER Motion and cross motion are consolidated and decided as follows: On May 22, 2007, plaintiff, an employee of Cablevision was laying cable wire on Brush Avenue in Bronx County when a police car later identified as an MTA police vehicle allegedly sped over the wire lying on the road while plaintiff was still holding it causing plaintiff to be dragged six to ten feet resulting in personal injuries. liability. Plaintiff has moved for summary.judgment on In response to the opposition submitted by defendants NYCTA, MTA and MABSTOA (The Authority) plaintiff has also submitted a motion to strike the answer of the Authority, I [* 2] FILED Jan 31 2013 Bronx County Clerk precluding the testimony of Officer Perez, as well as, sanctions and costs against the Authority and their counsel. Procedural History Plaintiff filed her Notice of Claim on August 16, 2007. The Notice of Claim included the name of the officer (Officer Perez), who was operating the vehicle. On May 15, 2008 plaintiff filed her summons and compiaint alleging that the Authority owned, operated, and controlled the vehicle that drove over the cable. The Authority's answer served May 22, 2008 denied ownership, operation, and control of the vehicle. Neil Redmond, Esq. the Authority's in house counsel verified the Authority's answer. Plaintiff served discovery demands on June 23, 2009 and a Preliminary Conference was held on November 17, 2009. The Preliminary Conference order directed all defendants to exchange any incident or accident reports, as well as witnesses to the subject incident. judgment. Shortly thereafter the City moved for summary Without responding to either the Discovery Demands or the Preliminary Conference Order the Authority cross move_d for summary judgment. In its motion counsel for the Authority stated that his client denied ownership of the subject vehicle involved in the accident and argued that s:i.nce the Authority did not own, manage, operate, or maintain the subject vehicle, it was not a proper party to this action. Counsel claimed that plaintiff's 2 [* 3] FILED Jan 31 2013 Bronx County Clerk case was based upon pure speculation. On November 8, 2010 this court denied all motions as premature. On February 15, 2011, a Compliance Conference was held. The Authority was once again directed to comply with the Preliminary Conference Order of November 17, 2009, provide all incident reports, police reports, aided reports, memo book reports created for the subject incident; the full name and badge number of Officer Perez; the identity of all personnel on behalf of the defendant who were present at the scene of the incident on the date of the accident; the identity of the driver of the car involved in the incident; all records of all communications between the operator of the vehicle involved in the incident; an affidavit from someone from the Authority detailing the searches done involving the subject incident if the Authority were to continue to argue that the vehicle involved in the incident, and depicted on the video previously, was not an Authority vehicle. In March 2011 the Authority served a response to the compliance conference order which was verified by Mr. Redmond. In it the Authority maintained that it was not in possession of any photographs or accident reports, nor were they aware of any witnesses other than those mentioned at the 50-h hearing. The response goes on to state that the Authority was continuing to search for names, addresses, and identities of personnel who were present at the scene of the accident. 3 [* 4] FILED Jan 31 2013 Bronx County Clerk In June 2011 the City moved to renew its motion for summary judgment. Plaintiff cross moved for summary judgment as to the owner of the offending vehicle. The Authority did not oppose the motions. The City's motion was granted. With regard to plaintiffs' cross motion the Court held: Plaintiff's cross motion against the Authority is granted. The documentation before the Court, including the sworn testimony, affidavit, and photographs indicate that the offending vehicle was an MTA Police vehicle. No opposition has been submitted to raise an issue of fact. The Authority, now appearing by outside counsel, for the first time identifies the driver of the MTA vehicle as Josef Perez, and provides an affidavit from him dated May 31, 2012 in opposition to the motion. Discussion All parties and their counsel have an obligation to make good faith efforts to fulfill their discovery and disclosure obligations and to resolve all discovery and disclosure disputes, before seeking judicial intervention. Dilatory tactics, evasive conduct and/or a pattern of non-compliance with discovery and disclosure obligations may give rise to an inference of willful and contumacious conduct, and may result in severe adverse consequences and sanctions. Sanctions for non-compliance with discovery which have been upheld by the First Department include dismissal of a complaint or answer. 4 See Rodriguez v United Bronx [* 5] FILED Jan 31 2013 Bronx County Clerk Parents, Inc., 70 AD3d 492 (1st Dept 2010); Figdor v City of New York, 33 AD3d 560 (l5t Dept 2006); J.ones v Green, 34 AD3d 260 (1st Dept 2006) . Based upon the record before the court, plaintiff's motion to strike the Authority's answer for their willful failure to provide discovery is granted. The Authority was required to provide the discovery at issue for over three years. Repeated demands and discovery orders were not complied with. However, what is more egregious in this situation is that since the inception of this case the Authority maintained through its in house counsel that it had no involvement in this matter, that they did not own, operate, or control the subject vehicle, and that there were no police incident or accident reports. Now after denying involvement, not complying with discovery, and moving for summary judgment on the grounds of lack of ownership, control, and involvement, the Authority produces an affidavit from the operator of the MTA vehicle and police/incident reports from at or around the time of the incident, without any reasonable explanation from their newly retained outside counsel, or its in house attorney. On this record it is clear that at the very least the Authority failed to make a reasonable search for the discovery demanded years ago. Moreover, the failure to comply with discovery for over three years taken together with the lack of 5 [* 6] FILED Jan 31 2013 Bronx County Clerk ownership and involvement defense allows this court to infer willfulness and evasive conduct on the part of the Authority which warrants the striking of their answer. The request for monetary sanctions against both Mr. Gossett and Mr. Redmond is denied. Plaintiff's motion f-or summary judgment on liability is denied as moot. This constitutes the decision and order the court. Dated: January 25, 2013 LARRY S. SCHACHNER, JSC 6

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