Einbinder v Restoration Hardware, Inc.

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Einbinder v Restoration Hardware, Inc. 2019 NY Slip Op 33272(U) October 28, 2019 Supreme Court, New York County Docket Number: 155819/2016 Judge: Lucy Billings 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: 1] NEW YORK COUNTY CLERK 11/04/2019 03:01 PM NYSCEF DOC. NO. 84 INDEX NO. 155819/2016 RECEIVED NYSCEF: 11/04/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46 ------------------~---------------------x SUSAN J. EINBINDER and JEFFREY S., EINBINDER, Index No. 155819/2016 Plaintiffs - against RESTORATION HARDWARE, INC., TANGER PROPERTIES LIMITED PARTNERSHIP, TANGER FACTORY.OUTLET CENTERS, INC., and HOGAN RIVERHEAD, LLC, Defendants ----------------------------------------x ----------------------------------------x TANGER PROPERTIES LIMITED PARTNERSHIP, TANGER FACTORY OUTLET CENTERS, INC., 'and HOGAN RIVERHEAD, LLC, Third Party Plaintiffs - against TITAN GLOBAL, LLC, and LOYAL BUSINESS SERVICES, INC.,, Third Party Defendants l ----------------------------------------x DECISION AND ORDER LUCY BILLINGS, J.S.C.: Plaintiffs move to compel defendants Tanger Properties Limited Partnership and Tanger Factory Outlet Centers, Inc.j to produce Tanger Properties' employee Mary Lou Ambrose, and third party defendant· Titan Global, LLC, to produce its employee Edward Ramos, for depositions. C.P.L.R. § 3124. Only the Tanger defendants oppose the deposition of Ambrose. einbinder1019 1 2 of 5 [*FILED: 2] NEW YORK COUNTY CLERK 11/04/2019 03:01 PM NYSCEF DOC. NO. 84 I. INDEX NO. 155819/2016 RECEIVED NYSCEF: 11/04/2019 TESTIMONY FROM THE PREVIOUS WITNESS AND POTENTIAL TESTIMONY FROM AMBROSE Plaintiffs seek Ambrose's deposition because the Tanger defendants have produced only one witness for a deposition, who lacked personal knowledge regarding the circumstances of plaintiff Susan Einbinder's injury from a loose rock on the sidewalk in front of premises leased by defendant Restoration Hardware, Inc., from Tanger Properties at the Tanger defendants' shopping center. The shopping center is in Riverhead, New York, but the Tanger defendants' witness, Tanger Properties' Vice President of Operations Bruce Fry, worked in Pennsylvania, visited the shopping center only a few times per year, and was unfamiliar with the injury Site. He possessed minimal knowledge of the shopping center's daily operations and relied on Tanger Properties' management team at the shopping center for that information. Ambrose is a member of that -management team who is likely to possess relevant knowledge not only of the injury site, but also of the ci~cumstances surrounding Einbinder's injury, because \ Ambrose works at the shopping, across a parking lot-from the sidewalk in front of Restoration Hardware, and took photographs of the site following the injury. She is likely to have been in a position to observe whether there were any loose rocks or conditions that may have caused a loose rock in front of. Restoration Hardware and to know whether in that event her team took any action to correct such a condition or why not. Her (_ photographs suggest that she may have investigated or contributed einbinderl019 2 3 of 5 [*FILED: 3] NEW YORK COUNTY CLERK 11/04/2019 03:01 PM NYSCEF DOC. NO. 84 INDEX NO. 155819/2016 RECEIVED NYSCEF: 11/04/2019 J, to an investigation of how Einbinder's injury occurred. II. CONCLUSION Plaintiffs thus have met their burden to show the inadequacies in the Tanger_defendants' previous witness' knowledge about relevant issues and to compel the Tanger defendants to produce a second witness, Mary Lou Ambrose, who is more likely to know more about the relevant issues about which the previous witness knew.little. Best Payphones, Inc. v. Guzov Ofsink, LLC, 135 A.D.3d 585, 585 (1st Dep't 2016); Alexopoulos v. Metropolitan Transp. Auth., 37 A.D.3d 232, 233 (1st Dep't 2007); Gomez v. State of New York, 106 A.D.3d 870, 872-73 (2d Dep't 2013) ;,Trueforge Global Mach. Group v. Viraj Group, 84 938, 939-40 (2d Dep't ~011). A~D.3d Therefore the court grants plaintiffs' motion to compel Tanger Properties Limited Partnership and Tanger Factory Outlet Centers, Inc., to produce Mary Lou Ambrose for a deposition. C.P.L.R. §§ 3107, 3124. Plaintiffs shall re-serve notices of Mary Lou Ambrose's and Edward Ramos's depositions consistent with C.P.L.R. to complete them by December 20, 20.19. § 3107 s'o as Ambrose's deposition shall be conducted in New York County unless otherwise stipulated by plaintiffs and the Tanger defendants, the only parties that responded to plaintiffs'.motion to compel her deposition. C.P.L.R. § 3110(1). If plaintiffs fail to coriduct either deposition by December 20, 2019, they shall have waived the einbinderl019 3 4 of 5 [*FILED: 4] NEW YORK COUNTY CLERK 11/04/2019 03:01 PM NYSCEF DOC. NO. 84 INDEX NO. 155819/2016 RECEIVED NYSCEF: 11/04/2019 deposition. Plaintiffs shall serve and file a note·of issue by January 3, 2020. DATED: October 28, 2019 LUCY BILLINGS, J.S.C. LUCY B!lUNGS . . J ·:"' _..... einbinderl019 4 5 of 5

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