Rafee v New York City Tr. Auth.

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Rafee v New York City Tr. Auth. 2023 NY Slip Op 33007(U) August 28, 2023 Supreme Court, New York County Docket Number: Index No. 452225/2014 Judge: Denise M. Dominguez 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. 452225/2014 FILED: NEW YORK COUNTY CLERK 08/30/2023 12:59 PM NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 08/30/2023 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY .PRESENT: 21 PART HON. DENISE M DOMINGUEZ Justice ---------------------------------------------------------------------------------X FERAS S. RAFEE, 452225/2014 INDEX NO. MOTION SEQ. NO. _ __;0__;_0.. ;. 2_ _ Plaintiff, . -v- + DE.CISION ORDER ON MOTION NEW YORK CITY TRANSIT AUTHORITY, Defendant. ------------------------------------------------------------------- -----X. Third-Party Index No. 595725/2015 NEW YORK CITY TRANSIT AUTHORITY Plaintiff, -againstCITY OF NEW YORK Defendant. --------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 002) 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99,100,101,102,103,104,105,106,107,108,109,110,111, 112,113,114,115,116,117,118, 119, i20, 121, 122, 123, 124 DISCOVERY were read on this motion to/for Upon the foregoing documents, the Plaintiff's motion to prohibit the Defendant NEW YORK CITY TRANSIT AUTHORITY from "opposing plaintiff(s) claim or supporting defendant's defenses, or alternatively to strike the Defendant's answer, or alternatively to compel the Defendant to provide outstandi~g discovery and appear for deposition is denied without prejudice in part .and granted in part. Although the complaint is not entirely clear, this action apparently arises out of an August 6, 2013 incident in which it is alleged that the Plaintiff, FERAS S. RAFEE, was apparently caused to fall on a staircase at the Broadway and Canal Street subway station. (NYSCEF Doc. 1). As the Plaintiff has not·demonstrated that the Defendant's failure to provide a response to the October 18, 2021 notice to produce "was willful, contumacious or in bad faith, that branch of 452225/2014 RAFEE, FERAS S. vs. TRANSIT AUTHORITY Motion No. 002 [* 1] 1 of 4 Page 1 of 4 FILED: NEW YORK COUNTY CLERK 08/30/2023 12:59 PM NYSCEF DOC. NO. 125 INDEX NO. 452225/2014 RECEIVED NYSCEF: 08/30/2023 the Plaintiffs motion to strike the Defendants' answer, or alternatively to preclude the Defendant, is denied without prejudice. (Scher v. Paramount Pictures Corp., 102 A.D.3d 471, 958 N.Y.S.2d 122 [1 st Dept 2013]; see Pezhman v. Dep't of Educ. of City of New York, 95 A.D.3d 625, 944 N.Y.S.2d 128 [1 st Dept 2012]). Upon a review of the record, it is clear that despite the Defendant has previously exchanged substantial discovery and appeared for deposition. Thus, there is no . evidence that the Defendant has refused to participate in discovery or acted in bad faith. Upon a review of the record, it is also clear that the alleged outstanding discovery, at least in part, was previously sought in Motion Seq. 1. The Plaintiffs prior motion (Motion Seq. 1) was denied by Judge Machelle Sweeting as the Plaintiff did not abide by then Part 62 rules. (NYSCEF Doc. 69). Further, following the denial of that_ motion, the parties worked with Part 62 via two separate conferences on October 28, 2021 and December 9, 2021 to resolve outstanding discovery proposing a stipulation to address discovery that the Plaintiff seeks in the within motion. That stipulation addressed outstanding discovery items, would have included an affidavit concerning the Defendant's search for various records and would have acco_unted for a further deposition witness. The stipulation had the input and approval of Part 62. (NYSCEF Dcic. 121, 122, 123). However, it appears that the Plaintiff would not agree and did not sign the stipulation approved by Part 62. As outstanding discovery items were previously consented to by the Defendant and already approved by the Court, this Court sees no need to diverge from the prior determination. Accordingly, that branch of the Plaintiffs motion which seeks to compel outstanding discovery is granted to the extent of the following items, previously consented to by the Defendant, are to be provided by September 30, 2023.if not already exchanged: 1) As to items numerated in Plaintiffs Letter.to the Court dated October 14, 2021 (NYSCEF Doc 74): a. Items 1, 2, 4, and 5: Defendant NYCTA to provide, via email, prior responses of maintenance and repair records, which includes the Service Call Reports (a/k/a Trouble Call Reports), Production Reports, Defendant to provide an affidavit from the record searcher that the records provided are complete, true, and accu.rate copy of the maintenance and repair records; · b. Item 3: Defendant NYCTA to provide manual or guidelines as to how priority letters are assigned to service calls; c. Item 6: Defendant NYCTA to allow plaintiff to inspect, at a mutually agreeable time, the · station supervisor logs for the station supervisors assigned to the subject station; 452225/2014 RAFEE, FERAS S. vs. TRANSIT AUTHORITY Motion No. 002 [* 2] 2 of 4 Page 2 of 4 FILED: NEW YORK COUNTY CLERK 08/30/2023 12:59 PM NYSCEF DOC. NO. 125 INDEX NO. 452225/2014 RECEIVED NYSCEF: 08/30/2023 d. Item 7: Defendant to search for payroll production forms from RC shops, and if any, to be . provided; e. Item 8: Plaintiff withdraws demand. 2) E_xcept for the duplicative numerated items, Defendant NYCTA to respond to Plaintiffs Letter dated April 27, 2021 (efiled duplicate as NYSCEF Doc 75 and 76). 3) Deposition to be held by October 31, 2023 of a plumbing supervisor (Louis Ward, James Smith, or Shaji George) that can testify as to the service call numbers listed in Plaintiffs. Letter dated April 27, 2021, and irno longer employed, by September 22, 2023, Defendant to provide last known address_. Additionally, as the Court previously directed: "Counsel for Transit already has represented to the court that there is no separate electronic file for the case - that, instead, the information is retrieved from a general database and then sent to the handling attorney. The record ' keeper's affidavit shall explain this process". Thus, as no additional language related to ESI was previously directed by the Court, same will not be included now. Finally, the parties_ are also directed to submit a joint proposed Status Conference Order as per Part 21 rules on or by September 30, 2023 setting forth the dates for the completion of any remaining outstanding discovery with all discovery to be completed by November 30, 2023. Accordingly, it is ORDERED that the Plaintiffs motion to strike the Defendant's answer, or alternatively, to preclude the Defendant from presenting evidence at the .time of trial is denied; and it is further ORDERED that the Plaintiffs motion to compel the Defendant to provide outstanding discovery is granted to the extent set forth above; and it is further ORDERED that the parties are to submit a joint proposed status conference order on consent as per Part 21 rules on or by September 30, 2023 with all discovery to be completed by November 30, 2023; and it is further ORDERED that the Plaintiff shall file the note of issue by November 30, 2023; and it is further ORDERED that no adjournments of the above are permitted absent Court approval; and it is further 452225/2014 ·RAFEE, FERAS S. vs. TRANSIT AUTHORITY Motion No. 002 [* 3] 3 of 4 Page 3 of4 INDEX NO. 452225/2014 FILED: NEW YORK COUNTY CLERK 08/30/2023 12:59 PM NYSCEF DOC. NO. 125 RECEIVED NYSCEF: 08/30/2023 ORDERED that, wit4in 15 days from the entry ofthis order, movW?-t shall serve a copy of this order with notice of entry on all parties and upon the Clerk of the General Clerk's Office, who is hereby directed to strike the case from the trial calendar and make all required notations thereof in the records of the court; and it is further ORDERED that ·such upon the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electro~ically Filed Cases (accessible at the "E-Filing" page on the court's website)]. Any requested relief not expressly addressed herein has nonetheless been considered by the Court and is hereby expressly denied. 8/28/2023 HON. fJl!!NIS~•-..'-- DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: ~ CASE DISPOSED GRANTED . DENIED [* 4] GRANTED IN PART · SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 452225/2014 RAFEE; FERAS S. vs. TRANSIT AUTHORITY Motion No. 002 4 of 4 GUEZ s.c. NON-FINAL D.ISPOSITION REFERENCE Page4of4

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