Mendoza v City of New York

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Mendoza v City of New York 2019 NY Slip Op 33536(U) November 27, 2019 Supreme Court, New York County Docket Number: 160188/2013 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 12/02/2019 10:06 AM NYSCEF DOC. NO. 293 INDEX NO. 160188/2013 RECEIVED NYSCEF: 12/02/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 46 ----------------------------------------x PEDRO MENDOZA and JEN MARIE MENDOZA, Index No. 160188/2013 Plaintiffs - agains:t CITY OF NEW YORK, NEW YORK CITY HEALTH AND HOSPITALS CORPORATION,· HHC GOUVERNEUR HEALTHCARE SERVICES, HUNTER ROBERTS CONSTRUCTIO~ GROUP, L.L.C., DORMITORY AUTHORITY OF THE STATE OF .NEW YORK, J. PETROCELLI CONTRACTING, INC., B&G ELECTRICAL CONTRACTORS OF N.Y., INC.; .PRISTINE SERVICES, INC., and ADVANCE CONSTRUCTION, Defendants .! ----------------------------------------x ----------------------------------------x CITY OF NEW YORK, NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, ·HHC· GOUVERNEUR HEALTHCARE SERVICES, HUNTER ROBERTS CONSTRUCTION GROUP, L.L.C., Third :i?arty Plaintiffs - against :. . PRISTINE SERVICES, INC., Third Party Defendant ----------------------~-----------------x -------------------------~-----~--------x DORMITORY AUTHORITY OF THE STATE OF NEW YORK, Second Third Party Plaintiff - against B&G ELECTRICAL CONTRACTORS OF N.Y., INC. I Second Third Party Defendant mendozalll9 1 ) Please purchase PDFStamp Command Line product to remove this watermark. 2 of 5 http://www.verypdf.com Demo (http://www.verypdf.com) [*FILED: 2] NEW YORK COUNTY CLERK 12/02/2019 10:06 AM NYSCEF DOC. NO. 293 INDEX NO. 160188/2013 RECEIVED NYSCEF: 12/02/2019 --~-------------------------------------x DECISION AND,ORDER .LUCY BILLINGS, J.S.C.: Third party defendant Prisine Services, Inc., moves to compel defendant-second third party defendant B&G Electrical Contractors of N.Y., Inc., to produce its employee John·Begatta for a deposition. I. C.P.L.R. § 3124. TESTIMONY FROM THE PREVIOUS WITNESS AND POTENTIAL TESTIMONY FROM BEGATTA Pristine Serv'ices seeks Begatta's deposition because Begatta wrote B&G Electrical Contractors' "Supervisor's Report" of plaintiff's injury when plaintiff tripped and fell over B&G Electrical Contractors' electrical conduit. It was not in use, but was lying damaged in the hallway on the fourth floor of a building under constru~tion where .Plaintiff, B&G Electrical Contractors, and Pristihe Services were working. Se~vices Pristine insists, and no party disputes, that liability in this. action depends at least in part on which party was responsible for leaving the conduit in the fourth floor hallway. Nor ,does any party dispute that B&G Electri'cal Contractors comprised the only electricians on the tonstruction site and the only contractor that·used electrical conduit there. The previous witness whom B&G Electrical Contractors produced for a deposition, however, General Foreman Sean Caufield, wa~ not at the construction Site when plaintiff was injured. Caufield lacked personal knowledge regarding the circumstances of mendozalll9 pl~intiff's injury and had gathered no 2 Please purchase PDFStamp Command Line product to remove this watermark. 3 of 5 http://www.verypdf.com Demo (http://www.verypdf.com) [*FILED: 3] NEW YORK COUNTY CLERK 12/02/2019 10:06 AM NYSCEF DOC. NO. 293 ... INDEX NO. 160188/2013 RECEIVED NYSCEF: 12/02/2019 information from B&G Electrical Contractors' employees regarding plaintiff's injury or how or why electrical conduit was left in .the fourth .floor hallway. Begatta, in contrast, who was the supervisor at the site directly under Caufield, is more likely to' possess relevant knowledge not only ?f the injury site, but also of the circumstances surrounding plaintiff's injury, because in preparing.his report he may have investigated how plaintiff's injury occurred. Any investigation ought to have included communications with B&G Electrical Contractors' employees regarding how the electrical conduit was left in the fourth floor hallway. From any investigation, or simply in his supervisory· position, he may know who was responsible for tracking B&G Electrical Contractors' inventory of conduit. He also may know whether Pristine Services' laborers, who cleaned up debris at the construction •site, were aware of the damaged, unusable condui.t lying in the one of the hallways where the laborers cleaned up debris, yet ignored the potential hazard. Pristine Services is enti.tled to explore all these issues. II. CONCLUSION Pristine Services thus has met its burden to show the inadequacies in B&G El~ttrical Contractors' previous witness' ·knowledge about relevant issues and ·to compel B&G Electrical Contractors to produce a second witness, John Begatta, who is mor~ likely to know more about the relevant issues about whic~ the previous witness knew little. mendozalll9 Best Payphones; Inc. v. Guzov 3 Please purchase PDFStamp Command Line product to remove this watermark. 4 of 5 http://www.verypdf.com Demo (http://www.verypdf.com) [*FILED: 4] NEW YORK COUNTY CLERK 12/02/2019 10:06 AM NYSCEF DOC. NO. 293 INDEX NO. 160188/2013 RECEIVED NYSCEF: 12/02/2019 Ofsinki LLC, 135 A.D.3d 585, 585 (1st Dep't 2016); Alexopoulos Metropolitan Transp. -Auth., 37 A.D.3d 232, 233 v~ (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 A.D.3d 938, 939-40 (2d Dep't 2011). Therefore the court grants the motion by Pristine Services, Inc., to compel B&G Electrical Contractors of N.Y., Inc., to produce John Begatta for a depositi6n, C.P.L.R. § .3124. He shall appear at the time and place stipulated on the record November 14, 2019: ' December 4, 2019, at 10:00 a.m. at the office of defendants-third party plaintiffs' attorney, 44 Wall.Street, 15th floor, County. in New York The parties may not postpone this time without the court's permission. Plaintiffs shall serve and file a note of issue by December 17, 2019 . . DATED: November 27, 2019 LUCY BILLINGS, J.S.C. LUCY B~LUNGS J.S.C. rriendozalll 9 4 Please purchase PDFStamp Command Line product to remove this watermark. 5 of 5 http://www.verypdf.com Demo (http://www.verypdf.com)

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