Mascolo v Triborough Bridge & Tunnel Auth.

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Mascolo v Triborough Bridge & Tunnel Auth. 2023 NY Slip Op 32308(U) July 10, 2023 Supreme Court, New York County Docket Number: Index No. 155143/2023 Judge: Sabrina Kraus 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. INDEX NO. 155143/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 07/10/2023 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. SABRINA KRAUS Justice ----------------------------------------------------------------- ----------------X JOSEPH MASCOLO INDEX NO. 57TR 155143/2023 MOTION DATE Plaintiff, MOTION SEQ. NO. 7/10/2023 001 - V - DECISION + ORDER ON MOTION TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY, Defendant. ------------------------------------------------------------------- --------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 6, 7, 9, 10, 11, 12, 13, 14 were read on this motion to/for DISCOVERY - PRE-ACTION BACKGROUND On September 16, 2020, Petitioner was working at the Triborough Bridge and Tunnel Authority's shop at the Throgs Neck Bridge in Bronx County, placing a tire on a Hunter Revolution Tire Changer, when his right hand was crushed in an unguarded pinch point. In this action Petitioner moves for an order pursuant to CPLR §3102( c): (1) enabling Petitioner to review, inspect, and photograph the subject Hunter Revolution Tire Changer that injured Petitioner on or about September 16, 2020, located on the premises of Respondent, TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY at its Throgs Neck Bridge shop, located at 4260 Throgs Neck Expressway, Bronx, NY 10465; and (2) enabling Petitioner to copy records relating to the maintenance, repair, inspection, purchase, bidding, auction, and modification of the subject Hunter Revolution Tire Changer that injured Petitioner on or about September 16, 2020; and 155143/2023 MASCOLO, JOSEPH vs. TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY Motion No. 001 [* 1] 1 of 5 Page 1 of 5 INDEX NO. 155143/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 07/10/2023 (3) enabling Petitioner to copy any accident report and photographs created in relation to the incident that occurred on or about September 16, 2020; and (4) directing Respondent to cease from any use, alteration, destruction, removal, or sale of subject machine. Petitioner asserts it needs to know who sold, repaired, manufactured, and designed the subject machine to know who must be named as parties to his action. Petitioner also seeks to obtain the proper serial number to the subject machine so that the manufacturer and designer of the machine can be identified Petitioner did not retain counsel until June 2, 2023. The expiration of the statute oflimitations is September 16, 2023, as against defendants other than Respondent. Respondent opposes the relief sought. Respondent has provided Petitioner with the name of the manufacturer of the Machine, Hunter Engineering Company, and the machine's serial number. Respondent has also advised that was purchased from Mohawk Resources, Ltd. and installed by Hunter Engineering Company. Respondent asserts that the Hunter Revolution Tire Changer was inspected, maintained and repaired exclusively by JCAPS Mechanical LLC, and that it is unaware of any alterations or modifications to the machine. Respondent argues that the information it has provided is sufficient for Petitioner to identify the proper defendants to sue and therefore Petitioner's application has been rendered moot. Petitioner argues that the lack of a site inspection of the subject machine will cause detrimental prejudice to the Petitioner in not being permitted to thoroughly examine the machine prior to framing the complaint. Respondent asserted at argument that the machine has been previously repaired, and that counsel has identified documents related to the repair which are not voluminous. Counsel also 155143/2023 MASCOLO, JOSEPH vs. TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY Motion No. 001 [* 2] 2 of 5 Page 2 of 5 INDEX NO. 155143/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 07/10/2023 asserted at argument that the machine is not currently being used by Respondent and has not been used for several months. On July 7, 2023, Petitioner filed a summons and complaint in Bronx County, Supreme Court under Index Number 810358/2023. DISCUSSION "Before an action is commenced, disclosure to aid in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by court order." CPLR § 3102(c). 13. Pre-action discovery is not permissible to ascertain whether a cause of action exists. See Matter of GTV Media Group, Inc. v. Confidential Global Investigations, 205 A.D.3d 539, 539 (1st Dept. 2022); Bishop v. Stevenson Commons Assoc., L.P., 74 A.D.3d 640, 641 (1st Dept .20 I 0). Rather, pre-action discovery is available only "where a petitioner demonstrates that it has a meritorious cause of action and the information sought is material and necessary to the actionable wrong." Id.; see Sandals Resorts Intl. Ltd. v. Google, Inc., 86 A.D.3d 32, 38 (1st Dept. 2011). A "petitioner cannot use pre-action discovery to determine whether he might have additional causes of action or alternative theories of liability arising out of' an incident. Bishop, 74 A.D.3d at 641; see Matter of Uddin v. New York City Tr. Auth., 27 A.D.3d 265,266 (1st Dept. 2006). The court agrees that much of what Petitioner has requested goes beyond the need to frame a complaint and therefore is not properly sought within the context of this proceeding. See, Holzman v. Manhattan & Bronx Surface Transit Operating Auth., 271 A.D.2d 346 (1st Dept. 2000). F; Matter of Walker v. Sandberg & Sikorski Corp., 125 A.D.3d 480 (1st Dept. 2015); Ryan v. Marsh and McLennan International, Inc., 70 A.D.2d 567 (1st Dept. 1979). 155143/2023 MASCOLO, JOSEPH vs. TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY Motion No. 001 [* 3] 3 of 5 Page 3 of 5 INDEX NO. 155143/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 07/10/2023 However, the court grants the petition to the extent of directing Respondent to tum over the documents it has identified pertaining to repairs which were discussed at oral argument within 10 days of the date of this order, and further orders that Respondent is enjoined from any use, alteration, destruction, removal, or sale of subject machine through and including December 31, 2023, to afford Petitioner an opportunity to seek appropriate discovery in the context of the pending Bronx action and to preserve the status quo pending Petitioner's obtaining said relief. Similarly, Respondent is directed to preserve any photographs or accident reports related to the incident. WHEREFORE it is hereby: ORDERED that Respondent preserve all photographs and accident reports related to the accident; and it is further ORDERED that Respondent is enjoined from any use, alteration, destruction, removal, or sale of subject machine through and including December 31, 2023; and it is further ORDERED that Respondent tum over documents related to the repair of the machine to Petitioner within ten days of the date of this order; and it is further ORDERED that the balance of the relief sought by Petitioner is denied; and it is further ORDERED that, within 20 days from entry of this order, Petitioner shall serve a copy of this order with notice of entry on the Clerk of the General Clerk's Office (60 Centre Street, Room 119); and it is further ORDERED that such service upon the Clerk shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh);]; and it is further 155143/2023 MASCOLO, JOSEPH vs. TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY Motion No. 001 [* 4] 4 of 5 Page 4 of 5 INDEX NO. 155143/2023 NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 07/10/2023 ORDERED that this constitutes the decision and order of this court. 7/10/2023 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: SABRINA KRAUS, J.S.C. ~ CASE DISPOSED GRANTED DENIED SETTLE ORDER INCLUDES TRANSFER/REASSIGN ~ NON-FINAL DISPOSITION GRANTED IN PART SUBMIT ORDER FIDUCIARY APPOINTMENT 155143/2023 MASCOLO, JOSEPH vs. TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY Motion No. 001 [* 5] 5 of 5 OTHER REFERENCE Page 5 of 5

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