O'Halloran v Metropolitan Transp. Auth.

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O'Halloran v Metropolitan Transp. Auth. 2018 NY Slip Op 30619(U) April 10, 2018 Supreme Court, New York County Docket Number: 160953/2013 Judge: Manuel J. Mendez 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. [*FILED: NEW YORK COUNTY CLERK 04/10/2018 12:01 PM 1] NYSCEF DOC. NO. 107 INDEX NO. 160953/2013 RECEIVED NYSCEF: 04/10/2018 SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PART MANUELJ.MENDEZ PRESENT: 13 Justice INDEX NO. MOTION DATE MOTION SEQ. NO. MOTION CAL. NO. MARGARET O'HALLORAN, Plaintiff, -against- z U) w 0 U) METRO POLIT AN TRANSPORTATION AUTHORITY, NEW YORK CITY TRANSIT AUTHORITY, MTA BUS COMPANY, GEORGE MENDUINA, in his individual capacity and in his official capacity as an agent of MTA Bus Company and New York City Transit, Defendants. The following papers, numbered 1 to _JL_ were read on this motion to compel disclosure. Notice of Motion/ Order to Show Cause - Affidavits - Exhibits ... (Jc( _w I- 0:: U) (!) ::> """) 0 z 3: I- ...J ...J Answering Affidavits Replying Affidavits Cress-Motion: Exhibits---------- I PAPERS NUMBERED 1-3 4- 6 ....,,..,.~---------------1,___7_-~8__ 0 Yes X No 0 w 160953/2013 04/04/2018 002 c 0:: 0 0:: LL WW w l- LL :I: o:: >...J ...J ::> LL t- 0:: 0 LL Upon a reading of the foregoing cited papers, it is Ordered that Plaintiff's motion to compel Defendants to produce discovery disclosure pursuant to CPLR §3124, is granted to the extent that Defendants must: (i) provide documents within the time frame of September 1, 2011 to November 25, 2015 that are responsive to Plaintiff's October 13, 2017 Supplemental Demands, (ii) provide documents responsive to Plaintiff's Second Supplemental Demands dated November 30, 2017, and (iii) provide Defendant George Menduina's personnel file with a privilege log. The remainder of Plaintiff's motion is denied. u w Q. U) w 0:: U) w U) c( (J z 0 j::: 0 :E Plaintiff was employed by Defendants Metropolitan Transportation Authority, New York City Transit Authority ("NYCTA"), MTA Bus Company for nearly thirty (30) years. Throughout Plaintiff's employment she had been rated as good and/or excellent by thEi Defendants. Around November 2012 Plaintiff alleges she was demoted from Assistant Chief Facilities Officer with an annual salary of approximately $122,000.00, to Stc1ff Analyst I with a decrease in salary to approximately $35,000.00. Plaintiff c:ommenced this action on November 25, 2013 to recover damages for Defendants' alleged gender discrimination and retaliatory conduct under New York Executive Law §290, et seq. This Court granted Plaintiff's motion to amend her Complaint to include allegations of sexual orientation discrimination on August 17, 2016. Plaintiff served a Demand for Production of Documents on February 16, 2014 (Movi119 Papers Ex. F). Plaintiff served a Notice of Deposition for Darryl Irick on May 1 of 4 [*FILED: NEW YORK COUNTY CLERK 04/10/2018 12:01 PM 2] NYSCEF DOC. NO. 107 INDEX NO. 160953/2013 RECEIVED NYSCEF: 04/10/2018 ~!7, 2016 (/dat Ex. C). This Court's October4, 2017 Status Conference Order required Defendants to produce "search results of email boxes of Menduina, Jones, Finnegan Lemansky with O'Halloran in subject or body of email," and that parties would c:onfer by November 15, 2017 on further search terms (Reply Papers Ex. A). Plaintiff !>erved a Supplemental Demand for Production on October 13, 2017 demanding additional sets of emails (Moving Papers at Ex. B). Plaintiff then served her second Supplemental Demand for Production on November 30, 2017 (Id at Ex. H). This Court's ..lanucuy 31, 2018 Status Conference Order required Defendants to "produce the umails described in the 10/4/17 Order in searchable pdfs" and for Defendants to "produce Mr. Menduina's personnel file within 30 days with a privilege log" leaving the remaining outstanding discovery subjectto this motion (Opposition Papers Ex. J). ~~ Plaintiff now moves pursuant to CPLR §3124 to compel the Defendants to provide documents responsive to Plaintiff's three Discovery Demands, and produce Darryl Irick as a witness to be deposed. Defendants oppose the motion. CPLR §3101 [a] allows for the "full disclosure of all evidence material and necessary in the prosecution or defense of an action regardless of the burden of proof." The court may compel compliance upon failure of a party to provide discovery (§3124). It is within the court's discretion to determine whether the materials sought are "material and necessary" as a legitimate subject of inquiry or are being used for purposes of harassment to ascertain the existence of evidence (Roman Catholic Church of the Good Shepherd v Tempco Systems, 202 AD2d 257, 608 NYS2d 647 [1st Dept. 1i994]. "The words 'material and necessary' as used in §3101 must be interpreted liberally to require disclosure" (Kapon v Koch, 23 NY3d 32, 11 NE3d 709, 988 NYS2d 559 [2014]'). It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably c:alc::ulated to lead to the discovery of information bearing on the claims (GS Plasticos Limitada v Bureau Veritas Consumer Prods. Servs., Inc., 112 AD3d 539, 977 NYS2d 245 [1st DEipt. 2013]). Plaintiff's Supplemental Demands and Second Supplemental Demands are material and necessary as legitimate subjects of inquiry. Plaintiff alleges she was !;ubjected to gender and sexual orientation discrimination, and was ultimately retaliated aga in:>t by the Defendants after Mr. Menduina was promoted on or around September ~~1. 2011 to Acting-Chief Facilities Officer and Acting-Vice President. The Supplemental Demands seek email production from the Defendants that is specifically tailored and rele:vant to the subject inquiry. However, this Court finds that the Plaintiff failed to limit these demands to a confined time frame. Defendants must provide all documents responsive to Plaintiff's October 13, 2017 Supplemental Demands that occurred anytime from September 1, 2011 to November 25, 2015, two years after the commencement date of this action. Plaintiff's Second Supplemental Demands, which requested copies of any EEO Complaints, inspector general investigations, and/or other complaints filed by umployees of the Defendants where Mr. Menduina is named/or complained of is also rna1:erial and necessary. Defendants must provide documents responsive to Plaintiff's Second Supplemental Demands. Plaintiff fails to demonstrate that the Defendants have not properly responded to Pla.;ntiff's February 16, 2014 Demand for Production of Documents. Defendants annex 2 of 4 [*FILED: NEW YORK COUNTY CLERK 04/10/2018 12:01 PM 3] NYSCEF DOC. NO. 107 INDEX NO. 160953/2013 RECEIVED NYSCEF: 04/10/2018 cl portion of documents responsive to those Demands. With Plaintiff's general statement that the Defendants have not responded to numerous demands without sufficient E~vidence, this Court is unable to ascertain whether Defendants have fully responded to Plaintiff. Furthermore, Defendants' objections to Plaintiff's Demands numbered 5, 11, cmd 12 are valid as the demands are overly broad. Defendants have agreed to provide doc:urnents responsive to Plaintiff's Demand number 2 (Mr. Menduina's personnel file with a privilege log). "A municipality has the right to determine which of its officers with knowledge of the facts may appear for pretrial examination. Only when the plaintiff establishes that the knowledge of the proffered official is insufficient to produce testimonial and documentary evidence material and necessary to the prosecution of the action, as provided in CPLR §3101 [a], may the court grant a motion for the production of additional witnesses" (Colicchio v New York, 181 AD2d 528, 581 NYS2d 36 [1st Dept. 1992]}. When moving for the production of additional witnesses, the party must make a detailed showing of the necessity for taking such depositions, and that the previously depos•ed witnesses had insufficient knowledge, the testimony was otherwise inadequate, or that there is a substantial likelihood the additional person sought for deposition possesses sufficient information (Hayden v City of New York, 26 AD3d 262, 809 NYS2d 75 [1st Dept. 2006]). Plaintiff has not shown the necessity to depose Darryl Irick, the President of Defendant MTA Bus Company and Senior Vice President of Defendant NYCTA, at this time. Defendants, as a municipality, has the right to determine which of its officers with •mowledge may appear for a deposition. Defendants served a timely CPLR 3106 notice on Plaintiff stating that Robert Finnegan, the Senior Director of Labor Relation, would be deposed in lieu of Mr. Irick (Moving Papers Ex. D). The deposition of Mr. Finnegan has. not gone forward. Furthermore, Plaintiff has not yet deposed Mr. Meduina. The alleged first-hand knowledge that Mr. Irick may have due to his numerous conversations with Mr. Meduina may also likely be known by Mr. Meduina himself. Plaintiff fails to show a substantial likelihood that Mr. Irick would have information that is "material and necessary" that could not be provided through the depositions of Mr. Finnegan and Mr. Medui na at the time. Accordingly, it is ORDERED, that Plaintiff's motion to compel Defendants to produce discovery disclosure pursuant to CPLR §3124 is granted to the extent that Defendants must: (i) provide documents within the time frame of September 1, 2011 to November 25, 2015 that are responsive to Plaintiff's October 13, 2017 Supplemental Demands, (ii) provide documents responsive to Plaintiff's Second Supplemental Demands dated November 30, 2017, and (iii) provide Defendant George Menduina's personnel file with a privilege log, and it is further, ORDERED, that within forty-five (45) days from the date of service of a copy of this Order with Notice of Entry upon the parties, Defendants shall provide to the Plaintiff 3 of 4 [*FILED: NEW YORK COUNTY CLERK 04/10/2018 12:01 PM 4] NYSCEF DOC. NO. 107 INDEX NO. 160953/2013 RECEIVED NYSCEF: 04/10/2018 documents within the time frame of September 1, 2011 to November 25, 2015 that are r~sponsive to Plaintiff's October 13, 2017 Supplemental Demands, documents r~~ponsive to Plaintiff's Second Supplemental Demands dated November 30, 2017, and D~fendant George Menduina's personnel file with a privilege log and it is further, ORDERED, that the remainder of the motion is denied. ENTER: MANUEL J. Mc.NOEL J.S.C. MANUElJ.MENDEZ Dated: April 10, 2018 J.S.C. I 0 FINAL DISPOSITION X NON-FINAL DISPOSITION Gheck if appropriate: D DO NOT POST D REFERENCE Check one: ' 4 of 4

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