Trebista v Rosas

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Trebista v Rosas 2021 NY Slip Op 33007(U) December 3, 2021 Supreme Court, Richmond County Docket Number: Index No. 150304/2013 Judge: Thomas P. Aliotta 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] RICHMOND COUNTY CLERK 12/03/2021 03:29 PM NYSCEF DOC. NO. 85 INDEX NO. 150304/2013 RECEIVED NYSCEF: 12/03/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND: PART C-2 --------------------------------------------------------------------X HON. THOivlAS P. ALJOTT A VIOLETA TREBIST A, Plaintifi~ -against- DECISION & ORDER Index #150304/2013 CARMEN ROSAS. THE CITY OF NEW YORK and TI lE NEW YORK CITY FIRE DEPARTMENT. Motion No. 003 Defendants. --------------------------------------------------------------------X Recitation as required pursuant to CPLR 2219(a) of the papers numbered '·1 '' through "4" \Vere marked fully submitted on the 15 111 day of September 2021 Papers Numbered Plaintiff's Notice of Motion (I) pursuant to CPI ,R §3042(d) and CPLR §3126(3) to Strike Defendants' Ansv.:er; (2) pursuant to CPLR §3042(c) and ~3126(2) for an Order of Preclusion; and (3) pursuant to CPI.R §3124 compelling Defendants to Respond to the Notice to Produce dated Augw;t 7, 2020 (dated May 7, 2021) .................................................................... 1 Plaintiff's Affirmation in Support ofrviotion (elated May 7, 2021) ....................................................................................................... 2 Defendants' Affirmation in Opposition (dated September 8, 2021) ............................................................................................. 3 Plaintiffs Affirmation in Reply (dated September 14, 2021) .......................................................................................... .4 Upon the foregoing papers, plaintiff's motion (Seq. No. 003), inter alia, for an order pursuant to CPLR §3124 compelling defendants Cannen Rosas. The City of New York and The New York City Fire Department (hereinafter, collectively, the "City") to respond to plaintiff's Notice to Produce dated August 7, 2020 is decided as follows: Trebista v. City 150304/2013 Page 1. a/10 1 of 10 [*FILED: 2] RICHMOND COUNTY CLERK 12/03/2021 03:29 PM NYSCEF DOC. NO. 85 INDEX NO. 150304/2013 RECEIVED NYSCEF: 12/03/2021 PlaintitTViolcta Trebista commenced this aclion on J\.-'lay 23, 2013 to recover damages for personal injuries sustained on December 30, 2012 arising from a motor vehicle accident in the northbound lanes of Hy Ian Boulevard at or near its intersection \Vith Scavie\v Avenue in Staten Island, New York. According to plaintiff's Notice of Claim (NYSCEF 83), it is alleged that plaintiffs vehicle was struck by a New York City Fire Deparlment ambulance operated by its employee, defendant Carmen Rosas. I'v1s. Trcbista alleges the accident occurred when the driver of the ambulance ''attempted a right turn onto Sea view Avenue from the middle lane as it also traveled north on Hylan Boulevard." Presently before the Court is plaintiffs motion for an order (1) pursuant to CPLR § 3126(3) and CPLR § 3042(d) for an order striking defendants' answer for its failure to comply with a Notice to Produce dated August 7. 2020: (2) pursuant to CPLR § 3126(2) and CPLR § 3042( c) to preclude defendants from presenting evidence in support of their claims at trial, or in the alternative: (3) pursuant to CPLR § 3124 compelling defendants to respond to the Notice to Produce dated August 7, 2020. A compliance conference \Vas conducted on March 23, 2021. At that time, plaintiff's counsel advised the Court that despite good faith efforts to address the City's objeclions to plaintiff's Notice to Produce dated August 7, 2020, the parties were unable to reach an amicable resolution. Thus, the Court granted plaintiff pem1ission to serve a motion to resolve the issues. lt is noted from the outset that the parties have annexed to their respective papers two different versions of the Notice to Produce at issue. Plaintiff's version (NYSCEF 73) contains eight (8) demands for documents and information, while defendants' version (NYSCEF 83) contains nine (9). Therefore, the Court will address the Notice to Produce annexed to the City's opposition to the motion, which lists the following demands: Trebista v. City 150304/2013 Pagelo/10 2 of 10 [*FILED: 3] RICHMOND COUNTY CLERK 12/03/2021 03:29 PM NYSCEF DOC. NO. 85 INDEX NO. 150304/2013 RECEIVED NYSCEF: 12/03/2021 Demand 1: Any and all surveillance videos of the accident. Response: The City objects based on lachcs and further asserts the City is not in possession of any video of the incident. Demand 2: A complete unredacted copy of the Chief Otlicer' s Apparatus Accident Investigation Report. Response: The City objects to this demand based on !aches and the item requested calls for post incident remedial measures and is privileged material. Demand 3: A complete copy of the master record of crash scene field inspections. Response: The City objects based on the doctrine of !aches and it is w1known if such records exist or ever existed. Demand 4: Defendants' response, or courtesy copies of the response to the Demand for Verified Bill of Particulars as to Affim1ative Defenses previously served by plaintiff's former counsel. Response: The Verified Bill of Particulars as to affirmative defenses to be provided under separate cover. Demand 5: A true copy of defendant, Carmen Rosas' deposition transcript from April 25, 2018, executed by Carmen Rosas. Response: The City objects based on previous discussion with plaintiff's present counsel in that it is unclear what the status is between prior and present counsel. The City does not wish involvement in any disputes. As such plaintiff's counsel should obtain said documents from plaintiff's prior counsel. Demand 6: The employment status or last knov,11 address of Gary Wegener, Unit/Group L109 14, Battalion 21, Division 08. Response: The City objects to this demand based on !aches. Demand 7: Any and all \Vritten reports, studies, surveys, documents and infrmnation identifying the existing traffic control devices, including but not limited to any and all traflic signs, traffic signals, traffic road lines, and safety studies existing at the time of the incident (December JO, 2012) relevant to the north east bound side of Hylan Boulevard from the stretch of road between Buel Avenue and Seaview Avenue; Response: The City objects to this demand based on laches and that said request is vague, irrelevant, palpably improper, overburdensome and unlikely to lead to admissible evidence, Trebista v. City 150304/2013 Page3of lO 3 of 10 [*FILED: 4] RICHMOND COUNTY CLERK 12/03/2021 03:29 PM NYSCEF DOC. NO. 85 INDEX NO. 150304/2013 RECEIVED NYSCEF: 12/03/2021 Demand 8: Copies of all documents or written materials that defendants '-'Viii rely on in support of its affim1ativc defense of limited governmental immunity. Response: The City objects as this demand is vague and palpably improper. Demand 9: Courtesy copies of any and all discovery and discovery responses previously exchanged with plaintiff's former counsel. Response: The City objects based on previous discussion \,Vith plaintiffs present counsel in that it is unclear \Vhat the status is between prior and present counsel. The City docs not wish involvement in any disputes. As such plaintiffs counsel should obtain said documents from plaintiff's prior counsel. Plaintiff maintains such evidence is customarily provided in motor vehicle accidents resulting in fDNY investigations. It is said to be material and necessary to prove the City's violation ofNe\V York State's V chick and Traffic laws \vas a proximate cause of her injuries. Furthem10re, plaintiff maintains the City improperly redacted the results of a fact-finding investigation as set forth in the NC\v York City Fire Department's ·'Chief Officer's Apparatus Accident Investigative Report" which the City produced in its response to the Preliminary Conference Order. In particular, the report is redacted as to material conclusions of fact, i.e., causes of the accident; ddermination of preventability; violations of departmental rules and regulations: and recommended corrective/disciplinary action. It is alleged that since the document is certi lied as a report prepared in the ordinary course of husiness, it is considered mandatory discovery under CPLR s 3101 (g) and should be produced in unrcdactcd rorn1. Plaintiff claims that defendants' \Villful and contumacious refusal to provide material discovery necessary to the prosecution of this action, including courtesy copies of prior responses, has caused unwarranted delays and substantial prejudice. As such, she argues that an order, inter alia, compelling the City to provide the outstanding discovery is warranted. Trebista v. City 150304/2013 Page4of10 4 of 10 [*FILED: 5] RICHMOND COUNTY CLERK 12/03/2021 03:29 PM NYSCEF DOC. NO. 85 INDEX NO. 150304/2013 RECEIVED NYSCEF: 12/03/2021 In opposition, the City has reiterated its objections to the Notice to Produce and, further, the City argues that although the accident occurred over 8 years ago, the records and information sought in these items were never requested prior to plaintiff's service of the Notice to Produce. Thus, defendants contend that performing a search at this stage of the proceedings after such a lengthy time period would be futile. The City has also set forth more specific objections within their opposition, as follows: Demand 1: Even if one existed [surveillance videos], plaintiff failed to request that such evidence be preserved following the accident. Demand 2: Further, the redactions in the Chief Officer's Investigative Report are proper as the information pertains to post-accident remedial measures which are not discoverable. Demand 7: The records relating to highway design defects or signal, signage and/or roadway defects are irrelevant absent the assertion of such allegations in the notice of claim. However, the City has now consented to the following relief: Demands 4, 6 and 8: The City has agreed to comply by providing a copy of the verified bill of particulars to the affirmative defenses; the employment status or last known address of Gary Wegener, Unit/Group L109 14, Battalion 21, Division 08; and other documents previously exchanged with plaintitrs prior counsel upon the Court's issuance of an order to that effect. With respect to that branch ofplaintitrs motion which seeks an order pursuant to CPLR § 3126, the City argues that such request is misguided. The City contends it is well recognized that the statute can be applied only when a party has willfully refused to obey a Court order requiring disclosure. The Court has not issued any such orders in this action directing the City to provide the documents sought in the Notice to Produce. Thus, the City argues that Trebista v. City 150304/2013 Poge5of10 5 of 10 [*FILED: 6] RICHMOND COUNTY CLERK 12/03/2021 03:29 PM NYSCEF DOC. NO. 85 INDEX NO. 150304/2013 RECEIVED NYSCEF: 12/03/2021 plaintiff is not entitled to relief pursuant to CPLR § 3126 absent its noncompliance with a Court order. DISCUSSION "It is a fundamental principle in civil litigation that '[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof" (Slapo v. Winthrop Univ. Hosp., 186 AD3d 1281, 1282 [2d Dept 2020] citing Al/en v. Crowell-Collie Pub/. Co., 21 NY2d 403, 405-407 [1968]; CPLR 3101 [a]). The statute shall be liberally construed ''to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (Allen v. Crowell-Collie Pub/. Co., 21 NY2d at 406; see Vargas v. A. Lee, 170 AD3d 1073, 1075 [2d Dept 2019]). However, the principle of full disclosure "does not give a party the right to uncontrolled and unfettered disclosure" (Pascual v. Rustic Woods Homeowners Assn., 149 AD3d 757, 758 [2d Dept 2019]; see McAlwee v. Westchester Health Assoc., PLLC, 163 AD3d 547,548 [2d Dept 2018]; JPMorgan Chase, National Association v. Levenson, 149 AD3d 1053, 1054 [2d Dept 2017]). In the motion before the Court, plaintiff has the burden to "demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims, and unsubstantial bare allegations of relevancy are insufficient to establish the factual predicate regarding relevancy" (JOJCo, LLC v. Sand Land Corporation, 189 AD3d 942, [2d Dept 2020], citing Crazytown Furniture v. Brooklyn Union Gas Co., 150 AD2d 420 421 [2d Dept 1989]; see Wadolowski v. Cohen, 99 AD3d 793, 794 [2d Dept 2012]). Trebista v. City 150304/2013 Page6o/10 6 of 10 [*FILED: 7] RICHMOND COUNTY CLERK 12/03/2021 03:29 PM NYSCEF DOC. NO. 85 INDEX NO. 150304/2013 RECEIVED NYSCEF: 12/03/2021 The objections to demands numbered --1 •·. "T and "8" are sustained. First, a review of defendants' response to the preliminary conference order (NYSCEf 72) 1 indicates that defendants did not provide a response to directive 6(g) regarding surveillance videos. Prior to the service of the Notice to Produce dated August 7, 2020, plaintiff neither served an additional demand, nor requested permission to serve a motion to compel a response to 6(g). 2 Also. plaintiff has not articulated a basis that surveillance videos, from ''any and all" sources, may be in existence despite the City's veri lied response that it is not in possession of surveillance videos. Therefore, even though the language "any and air' contained in Demand "1" is not overly broad per se, the language is overbrnad, nonspel:iJic and without a factual foundation (sec Breslauer v. Dan, 150 AD2d 324, 325 (2d Dept. 1989] and / 0 I Co, LLC v. Sand Land Corporation, supra). The nonspecific nature of the demand renders it palpably improper (see Kiernan v. Booth Afemorial Medical Center, 175 AD3d 1396, 1397-1398 [2d Dept 2019] and Asprou v. Hellenic Orthodox Cunnnunily ufAstoria, 185 AD3d 638. 640 [2d Dept 20207). Second, the notice of daim is devoid of allegations that the roadway design or traffic control devices were the basis for liability. Thus. the information demanded in #7 \Vill not lead to discovery of admissible evidence as to the stated theory of negligence. i.e., the failure to operate the lights and sirens at the time of the accident while attempting a right turn from the middle lane (NYSCEF83 ). Plaintiff is hound by the theories of negligence alleged in the notice 1 The Cmirt reviewed the c-file docket in NYSCRF as the Preliminary Conference Order was not anm;xcd to the motion. Plaintiff annexed as an Exhibit to this motion a copy of the affirmation in opposition to a prior motion served by the City of New York seeking discovery (NYSCEF 75). The affinnation requested, inter alia, compelling a response to the Notice to Produce dated sn/2020. This request was denied without prejudice as this prayer for relief was not in proper fonn, i.e. a cross-motion. Within the affirmation in opposition, reference was also made to a postdeposition demand for discovery dated 2/24/2020 served by plaintiff. However, a copy of the demand was not annexed to said affillllation or the current motion. Therefore, the Court's holding herein is based upon the record before it. 2 Trebista v. City 150304/2013 Page 7of10 7 of 10 [*FILED: 8] RICHMOND COUNTY CLERK 12/03/2021 03:29 PM NYSCEF DOC. NO. 85 INDEX NO. 150304/2013 RECEIVED NYSCEF: 12/03/2021 of claim and cannot exceed its scope within the litigation (see h!l}' v. Incorporated Village of East Hampton, 193 AD3d 714 [2d Dept. 2021], citing Hurt on v. Village (fGreenport. 162 AD3d 968,969 [2d Dept. 20181, and Clare-llollo v. Finger l,akes Arnhulance EAfS, Inc., 99 AD3d 1199, 1200-1201 [4111 Dept. 2012j). Third, the demand for copies of "any and all" documents or \vritten materials that the municipal defendants \vi.11 rely on in support of its affirmative defense of limited governmental immunity, is also overly broad and burdensome (see A.,prou v. Hellenic Orthodox Community of Astoria and Kiernan v. Booth Memorial Medical Center, supra.), as well as palpably improper in that it fails to specify \Vith ''reasonable particularity" the documents dtmanded (see Breslauer v. Dan. supra.). Finally, \\"1th respect to plaintiffs request for an unredacted copy of the Chief Officer's Investigation Apparatus Accident Report (Demand 2) and the master record of the crash scene field inspe(.:tions (Demand 3), defendants shall produce the unredacted records to the Court for an in camera inspection and determination as to relevancy. Based upon the foregoing, plaintiff's motion for an order to compel responses, as ,vcll as CPLR §3126 (3) and CPLR §3126(2) to strike the answer and/or preclude defondants from introducing evidence at trial is denied. It is noted that sanctions pursuant io CPL R §3126 are drastic remedies thai arc justified only when a party re!i.1ses to comply with a court order directing disclosure, or willfully and deliberately fails to disclose information which the Court finds ought to have been disclosed (see CPLR §3126; Hoi Wah Lai, 89 AD3d 990,991 [2d Dept 2011]; Thompson v. Dallas BBQ, 84 AD3d 1221, 1221 [2d Dept 2011]). Here, plaintiff failed to make such a showing and, therefore, she is not entitled to an order imposing a sanction under CPLR §3126. Trebista v. City 150304/2013 PageBo/10 8 of 10 [*FILED: 9] RICHMOND COUNTY CLERK 12/03/2021 03:29 PM NYSCEF DOC. NO. 85 INDEX NO. 150304/2013 RECEIVED NYSCEF: 12/03/2021 Accordingly, it is ORDERED, the plaintiff's motion pursuant to CPLR § 3126(3) and CPLR § 3042(d) is denied; and it is further ORDERED, that plaintiff shall serve a copy of this Order with Notice of Entry through NYSCEF upon defendants; and it is further ORDERED, that plaintiff's motion for an order pursuant to CPLR §3124 is granted to the extent that defendants are directed to produce a complete unred.acted copy of the Chief Officer's Apparatus Accident Investigation Report and master record of the crash scene to the Court for an in camera inspection within 60 days of electronic service through NYSCEF of this Order with Notice of Entry; and it is further ORDERED, that plaintiff's motion for an order pursuant to CPLR §3124 is granted to the extent that defendants are directed to produce a response, or a courtesy copy of the response to the Demand for Verified Bill of Particulars as to Affirmative Defenses previously exchanged by plaintiff's former counsel; and it is further ORDERED, that plaintiff's motion for an order pursuant to CPLR §3124 is granted to the extent that defendants are directed to produce courtesy copies of any and all discovery and discovery responses previously exchanged with plaintiff's former counsel; and it is further ORDERED, that plaintiff's motion for an order pursuant to CPLR §3124 is granted to the extent that defendants are directed to provide the employment status or last known address of Gary Wegener, Unit/Group 1109 14, Battalion 21, Division 08; and it is further Trebista v. City 150304/2013 Page9a/10 9 of 10 [*FILED: 10] RICHMOND COUNTY CLERK 12/03/2021 03:29 PM NYSCEF DOC. NO. 85 INDEX NO. 150304/2013 RECEIVED NYSCEF: 12/03/2021 ORDERED that plaintiff's motion is denied in all other respects. This constitute the decision and order of the Court. Dated: Decembe0' 2021 E TER: HO ~ Trebista v. City 150304/2013 Page lOof 10 10 of 10 ALIOTTA, ! . .C

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