Hogan v City of New York

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Hogan v City of New York 2013 NY Slip Op 34179(U) March 27, 2013 Supreme Court, New York County Docket Number: 106954/201 Judge: Kathryn E. Freed Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF rffE STATE OF NEW YORK I COUNTY OF NEW YORK: Part 5 I ~---~-------------------------~-------------------------·-------){ MARSHALL HOGAN, . Plaintiff, DECISION/O~ER Index No.: 106954/201 Seq. No.: 003 -against- PRESENT: Hon. Kathryn E. Freed J.S.C. THE CITY OF NEW YORK, 301-303 WEST 125 LLC. I CONSOLIDATED EDISON COMPANY OF I NEW YORK, INC. and EMPIRE CITY SUBWAY COMPANY, . I ! 1 Defendants. . 1 :~LE" D -.! .• -------------------~-----------1-----------------------···--------){ HON. KATHRYNE. FrufED: ' .;'..:.; '.".;. ZD13 .~,. " I ~ RECITATION, AS REQUIRED BY CPLR §2219(8), Of. .:1,11B P~~BRED IN~ REVIEW OF THIS MOTION. I ..; . ;.i::~{tj;~ . . NUMB£Rl!t ·PAPERS . I NOTICE OF MOTION AND Af'FIDAVITS ANNEXED.................. ORDER TO SHOW CAUSE AND AFFIDAVITS ANNEXED........ . ANSWERING AFFIDAVITS.J .......................................................... . . I • REPLYING AFFIDAVITS................................................................ . EXHIBITS ..................•....•...... )...............................•.....•.....•................ STIPULATIONS: ................... .l............... ~ ........................................... •..... 1-2......... .. .......3-4...... . I OTHER. ................................... ! ............................................................ UPON THE FOREGOING CITED PAPERS. THIS DECISION/ORDER ON THIS MOTION IS AS FOLLOWS! . I for an Order pursuant to CPLR§ 3126 striking defendant 30 l ·303 West 125 Plaintiff moves . . I . LLC' s Answer for deliberately failing to take plaintiff's deposition, or in the alternative, pursuant . I . I · to CPLR§ 3124(2), comPielling said defendant to appear for Court Ordered depositions on a date i certain. No opposition h~ been submitted· I After a review of the instant motion, all relevant statutes and case law, the Court grants the I motion pursuant to CPLR§ 3126, and strikes defendant 301-303 West 125 LLC'·s Answer. • I I . • 1 [* 2] Factual and procedural bf ground: This is a negligence action wherein plaintiff seeks to r~cover damages for personal injuries allegedly sustained as a result of an accident occurring on February 15, 2011, on a sidewalk located in front of the pre;ruses Jown as 2335, 2336 & 2339 Frederick Douglass Boulevard in New York County. The sidewalk w~ caused to cave in by plaintiff stepping on it, causing him to fall intO a hole in the ground measur~ng 5 feet 5 inches, deep. I On March 9, 201 IJ plaintiff filed a Notice of Claim. On June 22, 2011, he filed a Summons I . and Verified Complaint, and a Supplemental Summons was tiled on August 16, 2011. On April 3, I 2012, a preliminary conference was held, wherein an Order was rendered by Justice Barbara Jaffe. Said Order is annexed to plaintiff's motion as Exhibit "D. '' The Order reads in pertinent part that the deposition of both plajntiff and defendant 301-303.West 125 LLC was to be held on May 21, I • 2012 at a location to be a~reed upon by the parties. Subsequently, at a compliance conference held· on September 18, .2012, another Order rendered by Justice Jaffe indicated in pertinent part that· I plaintiffs deposition was Ito be held on December 18,_ 2012. This _Order is annexed as Exhibit "F." Plaintiff alleges that defense counsel for defendant 301-303 West 125 LLC, has failed to . I appear for the aforementioned two scheduled depositions, in violation of two· Court Orders. He I . argues $at CPLR§ 3126 ~s an appropriate remedy in response to such "flaµnting of the discovery process." · Conclusions of law: I I CPLR§ 3126 addtesses penalties for the refusal to comply. with discovery. It permits the I. rendering of "an order stliking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or Jmissing the action or any part thereof, or rendering a judgment by default ! I 2 [* 3] I I I . I I against the disobedient pafty," as a remedy/penalty. To invoke the dr~tic remedy of striking an answer, it must be. demonstrated that a I defendant s failur~ to comply with discovery was the result of willful, contumacious and deliberate 9 conduct (see CPLR§ 3126; Cianciolo y. Trism Specialized Carriers, 724A.D .2d 369, 370 [2d Dept. I . I • 2000]; Vancott v. Great Atl.& Pac. Tea Co., 271 A.D.2d 438 [2d Dept. 2000]; Williams v. Ryder I TRS. Inc., 29 A.D.3d 78~ W Dept. 2006]. I In the case at bar, the Court finds that defendant 301 ..303West125 LLC's failure to appear ! at two previously Court Ordered depositions was willful and contumacious. Defendant has failed I to meet its burden of demonstrating a reasonable excuse for its nonappearance on two occasions. Indeed, it has failed to sibmit any opposition to the instant motion. In considering defendant's previous and current behkvior, affording it another opportunity to appear for a deposition seems I pointless ( Touray y. Munoz, 96 A.D.3d.623 (1st Dept. 2012]; Silverio v. Arvelo, 103 A.D.3d 401 [l 51 Dept. 2013] ). Thus.II striking its Answer is an appropriate and necessary remedy. . I . . Therefore, plaintiff having established that defendant 301-303 West 125 LLC has willfully turt I failed to appear at two • ordered depositions as directed in the preliminary conference order dated April 3, 2012 and the compliance conference order dated September 18,.2012, respectively, despite specific directiv~ in said orders, and without good cause, to appe"ar for deposition on the I dates directed therein, it is hereby ! ie . i I ORDERED that motion ofplaintiffto strike defendant 301-303 West 125 LLC's Answer is granted, and it is further I . ORDERED that/defendant 301-303 West 125 LLC is precluded from offering proof in I ; opposition to plainti~ s h1aim of an unsafe condition; and it is further I 3 [* 4] ORDERED that plaintiff-movant shall serve a copy of this order on all other parties and the I I Trial Support Office, 60 c9ntre Street, Room 158. and it is ~er i ORDERED that counsel shall appear on June 4, 2013,in Room 103 at 2:00 p.m., 80 Centre I . Stre~t, to set a trial date on /the remaining issues in the case; and it is further I · . ORDERED that a rote of issue and statement of r~ess shall be afor~mentioned conferenc~; de~ed at the and it is further . ! I ORDERED that this constitutes the decision and order of the Court. I DATED: March t1l2013 , · ·HM 21 ENTER: iol3/ I I I on. Kathryn E. Freed J.S.C. HON. JCA'lHRYNFRBBJ> JUSTICE OF SUPREME COURT FILED MAR 2 9 2013 : Nl:WYORK COUNTY CLERK'S OFFICE 4

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