Levin v City of New York

2024 NY Slip Op 31226(U)

April 10, 2024

Supreme Court, New York County

Docket Number: Index No. 152982/2019

Judge: Hasa A. Kingo

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.152982/2019 LEVIN, ST EPHEN J vs. CITY OF NEW YORK

Motion No. 002 Page 1 of 4 The following e

- filed documents, l isted by NYSCEF document number (Motion 002) 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 50, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 68

were read on this motion to/for DISCOVERY

.
This is an action to recover monetary damages for personal injuries allegedly sustained on March 13, 2018, by Plaintiff Steven Levin ( “Plaintiff ”) , when he allegedly tripped and fell in the roadway of West 54 th Street near its intersection with 7th Avenue here in the Ci ty and Cou n ty of

New York

. Plaintiff allegedly fell over construction debris located in the roadway at the subject

location. With the instant motion, Plaintiff and Plaintiff Lourdes J imenez Levin ( collecti vely

“ Plaintiffs ”) s eeks an order compelling D efendant Consolidat ed Edison company of New York,

In c. ( “Con Ed ”) and D efendant the City of New York ( “City ”) to produce records in response to a

post

- EBT demand s and to produce additional witness es to testify. U pon failure to produce the

records re quested by a date certain, Plaintiffs ’ seek to automatic ally preclu de Con Ed and the City

from offering any testimony or evidence at trial or in support of or opposition to any dispositive

motion

.

D I S C U S S I O N

CPLR §3101(a)(1) provides, in relevant part, that “ [t]h ere shall be full disclosure of all matter material and necessary in the prosecution or defense of an action. ” The terms “ material and

necessary ” in this statute “ must ‘ be interpreted liberally to require disclosure, upon request, of any facts bearing on t he controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity ’ ” ( Matter of Kapon v. Koch , 23 NY3d 32, 38 [2014] , quoting Allen

v. Crowell

- Collier Publ. Co. , 21 NY2d 403, 406 [1968]). At the same time, a p arty is "not entitled to unlimited, uncontrolled, unfettered disclosure" ( Geffner v. Mercy Med. Ctr ., 83 AD3d 998, 998 [2d Dept 2011]; see Quinones v. 9 E. 69th St., LLC , 132 AD3d 750, 750 [2d Dept 2015]). “ It is incumbent on the party seeking disclosure 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 ” ( Crazytown Furniture v. Brooklyn Union Gas Co. , 150 AD2d
420, 421 [2d Dept. 1989]; see Quinones , 132 AD3d at 750, supra ).



### SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. HASA A. KINGO PART 05M

Justice

----------------------------------------------------------------- -- -------------- X INDEX NO. 152982/2019

MOTION DATE 01/26/2024

MOTION SEQ. NO. 002

DECISION ON MOTION

- SUBMIT ORD / JGMT (AMENDED) STEPHEN J LEVIN, LOURDES JIMENEZ LEVIN,

Plaintiff,

- v

-

THE CITY OF NEW YORK, CONSOLIDATED EDISON,
CONSOLIDATED EDISON COMPANY OF NEW YORK INC

Defendant.

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NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 04/10/2024

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### [* 1]152982/2019 LEVIN, ST EPHEN J vs. CITY OF NEW YORK

Motion No. 002 Page 2 of 4 CPLR §3126 authorizes the imposition of disclosure sanctions, including the striking of a pleading, for a party's failure to comply with court

- ordered discovery, especially where there is a clear showing that plaintiff's conduct is willful, contumacious or manifests bad faith ( see Irizarry v Ashar Realty Corp. , 14 AD3d 323 [1st Dept 2005]; Katz v Dream Trans, Inc ., 11 AD3d 412 [1st Dept 2004]; Frye v City of New York, 228 AD2d 182 [1st Dept 1996]).

Finally, pursuant to CPLR §3124 this court can, in its discretion, compel disclosure of information that a party fails to adequately respond to.

Con Ed

Here, Plaintiff

s ’ motion must be denied in its entirety with respect to Con Ed

. First, Con

Ed has fully complied with the Case Scheduling Order ( “CS O ” ) and all o rders of this c ourt , and is

not re quired to provide th e additional disclosure s sought by Plaintiff s here. To be sure, Plaintiffs’ Demand No. 2 demanded a “copy of all permits, permit applications, Notice(s) of Violation, Corrective Action Request, Inspection records, HIQA records for the roadway segment of West

54th Street between 7th Avenue and 6th Avenue (Avenue of the Americas) for the period from March 8, 2018 to April 30, 2018.” Such a request is overly broad, as Plaintiffs’ demand a search

for the entire block, even though the accident her e is alle ged to have occurred in the crosswalk

near the corner of West 54th Street and 7th Avenue. Like wise

, Con Ed has already comp lied with

the CSO by searching for pertinent documents looking back two years from the date of the accident, including the period from March

. 8, 2018 to the date of the accident, March 13, 2018

. Plaintiffs also improperly seek post

- accident re cords (i.e., March 14, 2018 to April 30, 2018) that

are not discoverable ( s ee Cook v. HMC Times Sq. Hotel, LLC , 112 A D 3d 485 [ 1st Dep t 2013 ] )

. Despite Plaintiffs’ admission that non

- party Verizon is responsible for the condition that caused

the accident, in support of the underlying motion, Plaintiffs contend that post

- accident records are needed to determine ownership and control of the instrumentality that caused Plaintiff’s accident.

However

, in point and fact, there is no issue of control over the condition t hat caused the accident. Plaintiffs have already admitted that the debris that caused the accident belonged to non

- party
Verizon. As such

, requiring Con Ed to make further disclosures would be imp roper.

In addition, Plaintiffs’ Demand No. 3 seeks a “copy of all permits, permit applications, Notice(s) of Violation, Corrective Action Requ est, Inspection records, HIQA records for the sidewalk segment of West 54th Street between 7th Avenue and 6th Avenue (Avenue of the Americas) for the period from March 8, 2018 to April 30, 2018. ” It is undisputed that Plaintiff ’ s accident occurred not on a sidewalk, but rather in the crosswalk of the roadway as he was crossing

West 54th Street at the intersection of 7th Avenue. There fore, a ny records related to the sidewalk are not material or necessary to the defense or prosecutio n of this action because the allegations in this case do not pertain to an alleged dangerous condition on the sidewalk and because, as noted,

Plaintiffs have fa iled to proffer that Con Ed is not responsible for the condition that caused

Plaintiff’s accident.

Plaintiffs’ Demand No. 4 seeks a “copy of all permits, notice(s) of violation, corrective action request, opening tickets, paving orders, emergency control system tickets, in possession of Consolidated Edison for the West 54th Street between 7th Avenue and 6th Avenue (Avenue of the INDEX NO. 152982/2019

NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 04/10/2024

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### [* 2]152982/2019 LEVIN, ST EPHEN J vs. CITY OF NEW YORK

Motion No. 002 Page 3 of 4 Americas) for the period from January 1, 2017 to April 30, 2018

. ” Plaintiff s ’ Demand No. 5 seeks a “copy of all dispositions and/or resolutions of the Correction Action Requests and/or Notice(s) of Violation issued to Consolidated Edison pertaining to West 54th Street betwee n 7 th Avenue and 6th Avenue (Avenue of the Americas) for the period from January 1, 2017 to April 30, 2018. ”

Plaintiff s ’ Demand No. 8 seeks “copy of all inspection reports prepared by or on behalf of Con Edison pertaining to the c ompliance of Con Edison and/or its contractors with the specific stipulations contained in the permits issued by the Department of Transportation for the West 54th Street between 7th Avenue and 6th Avenue (Avenue of the Americas) for the period from Januar y 1, 2017 to April 30, 2018. ”

Con Ed has proper ly objected to these demands. Indeed, Plaintiff s ’ Demands Nos. 4, 5, and 8 improperly seek records for the entire block, even though the accident occurred in the crosswalk near the corner of West 54th Street and 7th Avenue. Again, Plaintiff admits that the debris that caused his accident belonged to non

- party Verizon. Plaintiffs’ Demands Nos. 6 and 7 are likewise imp roper a s the debris in question belonged to non

- party Verizon . A s such

, no amount of additional discovery from Con Edi is material or necessary in the prosecution or defense of this matter

because Plaintiffs ’ have failed to prof fer that Con Ed is not responsible for the condition that

caused Plaintiff ’s accident.

Finally, Plaintiffs’ Demand No. 10 seeks a further deposition of Con Ed to i nterpret the records produced in response to Plaintiffs’ Demands Nos. 2

- 8. A wi tness for Con Ed has already testified. In any event, Plaintiff s ’ demand for a further witness is not a proper demand for a notice to produce, and, once again, no additional discovery or deposition testimony from Con Ed would

be material because there is not , at the pres ent time, a basis for which Plaintiffs cou l d argue that

“mat erial and necessary ” i nfo rmation could be g leaned from Con Ed , who appear s to have had

minimal or no establi s hed responsibility for the condition that caused Plaintif f’s accident.

Plaintiffs identify five permits and four notices of violation included in the City’s Response

to the CSO that were not included in Con Ed ’s r esponse to the CS O

. N one of these permits or

notices of violation is associated with the permit for the area where Plaintiff ’s alleged the accident

occurred. The n otices of v iolation were issued for locations unrelated to Plaintiff ’ s accident. As

the permits or notices of violation are not relevant as they do not relate to the lo cation of the accident, Plaintiff

s ’ have failed to show that their disclosure is “ma teria l and n eces sary ” to the

pros ecution of this act ion.

Finally, Con Ed has not a cted willfully, contumaciously, or in bad faith with respect to the discovery related to the instant motion . Accordingly, the portions of Plaintiffs’ motion which seek to compel a further response from Con Ed and/or preclude Con Ed from offering testimony or evidence at trial in support of or in opposition to any dispositive motion are denied.

The Ci t y

Plaintiff s ’ motion with respect to the Cit y is premised primarily on the co ntention that the City must produce records for the subject location after the accident occurrence, despite the alleged

defect bein g a transient condition and beyond the scope of the CSO

. As artic ulated in its opposition

, t he City has complied with its discovery obligations in this matter. Specifically, on December 14, INDEX NO. 152982/2019

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### [* 3]152982/2019 LEVIN, ST EPHEN J vs. CITY OF NEW YORK

Motion No. 002 Page 4 of 4 2021, the City served its response to the CSO noting that Department of Transportation ( “ DOT ”)

records had been requested. Thereafter

, the City Served a s upplemental CSO response on July 21, 2022, which contained the DOT records in compliance with the CSO for a 2

- year search of the roadway located at West 54th Street between 7th Avenue and Avenue of the Americas aka 6 th
Avenue to include 6 1⁄2 Avenue for the search period of March 13, 2016 to March 13, 2018 . On September 8, 2023, the City served its Response to Plaintif f s ’ Post

- EBT demands, denying the production of street sign records, sidewalk records and subsequent accident permits, applications, NOVs, CARS and HIQA inspection records . In addition to the documents produced the City has produced a DOT witness for deposition.

It is undisputed here that Plaintiff allegedly fell on debris in the roadway located at West

54th Street near its intersection with 7th Avenue. Plaintiff s ’ post

- EBT demand for sidewalk and sign records is not material and necessary to the de fense or prosecution of the action. Additionally, no showing has been made for the applicability of this demand to the claims asserted in the matter.

Plaintiff s ’ application amounts to a fishing expedition that has nothing to do with the actual claims alleged in this action. Further, Plaintiff s ’ other demand of the City to produce DOT records subsequent to P laintiff’s alleged accident is beyond the scope of the CSO. The City’s DOT records previously produced comply with the CSO. Specifi cally, the documents are for a 2

- year search of the roadway located at West 54th Street between 7th Avenue and Avenue of the Americas aka 6th Avenue to include 6 1⁄2 Avenue for the search period of March 13, 2016 to March 13, 2018.

Fina lly, Plaintiff

s ha ve made no showing that the City has acted willfully, contumaciously

or in bad faith. The record shows that the City has acted in good faith, categorically undermining the imposition of preclusion or sanction s

. Accordingl y, is it hereby

ORDERED that Plaint iffs ’ motion is den ied in its enti rety ; a nd it is further

O RDERED that the parties are d irected to appear for a confere nce in the DCM part of the courthouse located at 80 Centre Street, first floor, on Ma y 7, 202 4 at 2:00 PM

.

This constitutes the decision and order of the court

.

4/10/2024

DATE HASA A. KINGO, J.S.C.

CHECK ONE: CASE DISPOSED X NON

- FINAL DISPOSITION

GRANTED X DENIED GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE INDEX NO. 152982/2019

NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 04/10/2024

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