Santiago v Trefz

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Santiago v Trefz 2016 NY Slip Op 31365(U) June 10, 2016 Supreme Court, Bronx County Docket Number: 303982/13 Judge: Betty Owen Stinson 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 Jun 17 2016 Bronx County Clerk SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ---------------------------------------x BIENVENIDO SANTIAGO, DECISION AND ORDER Plaintiff (s), Index No: 303982/13 - against CHRISTIAN CARL TREFZ, INDIVIDUALLY, CHRISTIAN CARL TREFZ D/B/A BROADWAY TWO COMPANY (MCDONALD'S # 28538) TREZ CORPORATION, GM 5201 BROADWAY LLC, 5201 BROADWAY ASSOCIATES INC. AND 5201 BROADWAY ASSOCIATES, LLC., I I I Defendant(s). ----------------------------------------x Stinson, J. In this action for alleged personal injuries arising from the alleged negligent maintenance of the public sidewalk, defendants move for an order, inter alia, striking the complaint pursuant CPLR § 3126 on grounds that plaintiff has failed to provide discovery. Specifically, defendants assert that plaintiff has failed to provide responses to and comply with a legion of discovery demands served upon him and has also failed to provide discovery ordered within the Preliminary Conference Order dated June 12, 2014. Plaintiff opposes the instant motion asserting that it has, in fact, responded to each discovery demand served upon him by defendant; interposing proper objections thereto. Page 1 of 4 [* 2] FILED Jun 17 2016 Bronx County Clerk For the reasons that follow hereinafter, defendants' motion is denied. Plaintiff's complaint alleges the following: On November 9, 2012, plaintiff tripped and fell while traversing the a defective sidewalk located in front of 5201 Broadway, New York, NY (5201). It is alleged that defendants owned, maintained, and controlled 5201 and the abutting sidewalk and were negligent in failing to keep it reasonably safe. As a result of the foregoing, plaintiff alleges he sustained injury. particulars, plaintiff Specifically, alleges that he as per his bill of injured both knees, requiring surgery. Defendants' motion must be denied because as argued by plaintiff, defendants have failed to comply with 22 NYCRR 202.7. The Uniform Rules for the New York Trial Courts states that "with respect to a motion relating to disclosure" (22 NYCRR 202. 7), it shall not be filed absent "an affirmation that [moving] counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion" well settled that the failure to file the (id) . It is aforementioned affirmation warrants denial of any motion seeking disclosure or sanctions related thereto (Hernandez v City of New York, 100 AD3d 433, 434 [1st Dept 2012]; Molyneaux v City of New York, 406, 407 [1st Dept 2009]; Vasquez v G.A.P.L.W. Realty, Inc., 236 AD2d 311, 312 [1st Dept 1997]). Page 2 of Moreover, 4 64 AD3d denial of a motion [* 3] FILED Jun 17 2016 Bronx County Clerk seeking disclosure is also warranted when the affirmation of good faith submitted nevertheless fails to indicate that the proponent of disclosure actually conferred with counsel for the party from whom discovery is sought (Gonzalez v Intl. Bus. Machines Corp., 236 AD2d 363 [2d Dept 1997] ["Furthermore, the court did not err in summarily denying the appellant's motion to strike the complaint since counsel for the appellant failed to confer with counsel for the plaintiffs in a good faith effort to resolve the issues raised by the motion."]; Koelbl v Harvey, 1991] not 176 AD2d 1040, 1040 [3d Dept ["Contrary to the position taken by defendants that it was their obligation to make a particulars or to serve further reminders request upon for a bill of plaintiffs, they were required to communicate with plaintiffs in a good-faith effort to obtain the requested particulars without Supreme Court." filing a motion with (internal quotation marks omitted)]). Here, while defendants submit an affirmation of good faith, the affirmation motion insofar plaintiff on itself as three it precludes indicates separate consideration of that occasions defendants the instant only wrote to seeking compliance with discovery demands, allegedly to no avail. Thus, the affirmation fails to indicate that defendants actually engaged in discussions with plaintiff dispute. in an effort to resolve the instant discovery It is hereby ORDERED that plaintiff serve a copy of this Decision and Order Page 3 of 4 [* 4] FILED Jun 17 2016 Bronx County Clerk with Notice of Entry upon defendants within thirty hereof. This constitutes this Court's decision and Order. Dated : June 10, 2016 Bronx, New York Page 4 of 4 (30) days

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