Plana v United Christian Evangelistic Assn.

2024 NY Slip Op 31117(U)

April 3, 2024

Supreme Court, New York County

Docket Number: Index No. 157354/2020

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.
157354/2020 PLANA, DIONISIA vs. UNITED CHRISTIAN

Motion No. 003 004 005

Page 1 of 5

The following e-filed documents, listed by NYSCEF document number (Motion 003) 72, 73, 74, 75, 76, 

77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87

were read on this motion for DISCOVERY .

The following e-filed documents, listed by NYSCEF document number (Motion 004) 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, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 

136, 137, 138, 139, 140, 141, 142, 143, 144, 145, 146, 147, 148, 149, 150, 151, 152, 153

were read on this motion for DISCOVERY .

The following e-filed documents, listed by NYSCEF document number (Motion 005) 154, 155, 156, 157, 

158, 159, 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 

179

were read on this motion for DISCOVERY .

There are three motions pending before the court in the instant case. With the first, plaintiff

DIONISIA PLANA (“plaintiff”) seeks an order compelling defendants United Christian 

Evangelistic Association (“UCEA”), United Palace of Cultural Arts, Inc. (“UPCA”), and United 

Palace of Spiritual Arts Inc. (“UPSA”) (hereinafter collectively referred to as “UCEA”) to furnish 

a representative for testimony at a deposition to be arranged by the plaintiff. With the second, 

plaintiff moves for an order compelling defendants City of New York (“City”) and New York City 

Department of Transportation (“NYCDT”) to produce outstanding discovery and to furnish

witness Sam Wynn (“Wynn”) to testify at a deposition to be scheduled by plaintiff. Defendant 

Washington Heights and Inwood Development Corp. (“WHIDC”) joins in that application. 

Finally, with the third motion WHIDC moves to compel plaintiff to attend two additional 

independent medical examinations (“IMEs”).

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY

PRESENT: HON. HASA A. KINGO PART 05M

Justice 

---------------------------------------------------------------------------------X INDEX NO. 157354/2020

 MOTION DATE

03/23/2023, 

05/04/2023, 

12/04/2023

 MOTION SEQ. NO. 003 004 005

DECISION + ORDER ON 

MOTION

DIONISIA PLANA,

 Plaintiff, 

- v -

UNITED CHRISTIAN EVANGELISTIC ASSOCIATION, 

UNITED PALACE OF CULTURAL ARTS, INC.,UNITED 

PALACE OF SPIRITUAL ARTS, INC.,WASHINGTON 

HEIGHTS AND INWOOD DEVELOPMENT 

CORPORATION, CITY OF NEW YORK, NEW YORK CITY 

DEPARTMENT OF TRANSPORTATION

 Defendant. 

---------------------------------------------------------------------------------X

INDEX NO. 157354/2020

NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 04/03/2024

1 of 5 [* 1]
157354/2020 PLANA, DIONISIA vs. UNITED CHRISTIAN

Motion No. 003 004 005

Page 2 of 5

BACKGROUND

In this negligence lawsuit, plaintiff alleges that on March 19, 2019, she suffered severe 

injuries after tripping and falling on a sidewalk or plaza next to a building owned by UCEA located 

at 651 West 175th Street, New York, New York. Plaintiff contends that defendants are jointly 

responsible for maintaining a defective and unsafe condition on the sidewalk and/or being aware 

of such condition beforehand.

The case is presently in the pre-trial discovery phase. Plaintiff has been deposed, and on 

September 21, 2022, plaintiff's counsel deposed Thomas Cunningham (“Cunningham”), a 

representative of UCEA. Cunningham held the position of senior director of security and ceremony 

liaison, as well as head minister. During his testimony, he indicated that he had served as the head 

of security since September 10, 2018. He mentioned the existence of a maintenance team 

comprising nine individuals, which included Joan Guzman (“Guzman”), the director of operations 

responsible for overseeing the maintenance department. Cunningham testified that he regularly 

witnessed the maintenance team clearing snow and ice adjacent to the premises. However, he 

asserted that he never paid specific attention to or scrutinized the condition of the pavers where 

the accident occurred. Furthermore, he admitted to being unaware of any work conducted in that 

area since the accident date. Additionally, he clarified that the condition of the pavers was not a 

matter of concern for him and did not fall under his responsibilities. As such, plaintiff now seeks 

Guzman’s testimony to expound on perceived deficiencies in Cunningham’s testimony. 

Separately, Larisa Dubina (“Dubina”), previously testified on behalf of the City. Dubina, 

a record searcher for NYCDT, testified during her deposition that she had no knowledge of the 

plaza. As such, plaintiff now seeks the testimony of Wynn, who plaintiff argues would have 

extensive knowledge of the plaza.

DISCUSSION

CPLR §3101 provides 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.” “The words 

‘material and necessary’ as used in CPLR §3101(a) are ‘to be interpreted liberally to require 

disclosure ...of any facts bearing on the controversy’” (Allen v. Crowell-Collier Pub. Co., 21 NY2d 

403, 406 [1968]). At the same time, a party is “not entitled to unlimited, uncontrolled, unfettered 

disclosure” (Geffner v. Mercy Med. Ctr., 83 AD3d 998, 998 [2d Dept 2011]; 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]; Quinones, 

132 AD3d at 750, supra). Pursuant to CPLR §3124 this court can, in its discretion, compel 

disclosure of information that a party fails to adequately respond to. 

A plaintiff in a personal injury action affirmatively places her physical and/or mental 

condition in controversy (see Koump v. Smith, 25 NY2d 287, 295 [1969]). Pursuant to CPLR 

§3121, following the commencement of an action, “[w]here a plaintiff puts her physical condition 

INDEX NO. 157354/2020

NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 04/03/2024

2 of 5 [* 2]
157354/2020 PLANA, DIONISIA vs. UNITED CHRISTIAN

Motion No. 003 004 005

Page 3 of 5

at issue, the defendants may require a plaintiff to submit to an IME by a physician retained by 

defendant for that purpose” (Markel v. Pure Power Boot Camp, Inc., 171 AD3d 28, 29 [1st Dept

2019]; see also Arons v. Jutkowitz, 9 NY3d 393, 409 [2007]). 

A defendant is entitled to an IME of a plaintiff where the plaintiff fails to make a prima 

facie showing that it is potentially harmful or poses a serious threat to her health (see Chavoustie 

v. New York Hosp.-Cornell Med. Ctr., 253 AD2d 702 [1st Dept 1998], lv denied 93 NY2d 805 

[1999]). 

Motion Seq. 003

Here, plaintiff’s request to depose Guzman (Mot. Seq. 003) is denied. To be sure, plaintiff 

has failed to establish that Cunningham, a senior director of security and a community liaison for 

UCEA, who was already deposed on behalf of UCEA did not possess sufficient knowledge of the 

relevant facts or was otherwise inadequate. To the contrary, Cunningham’s testimony evinced that 

UCEA did not have responsibility for maintenance of the plaza. This stance would receive backing 

from Guzman, making any further testimony from her irrelevant and immaterial to the current 

case. Consequently, plaintiff's request to depose Guzman is denied.

Motion Seq. 004

Plaintiff and WHIDC’s request to depose Wynn, however, is granted. Unlike Cunnigham, 

Dubina’s previous testimony on behalf of the City revealed that Dubina had no knowledge of the 

plaza. By contrast, Wynn was identified several months ago as having been provided with written 

notice concerning the dangerous condition of the plaza. Nevertheless, despite good faith demands 

on the part of plaintiff and other defendants, the City failed to produce any documentation 

concerning the defective condition of the subject location, email communication from and to 

Wynn, or anything from the plaza. As Wynn would likely provide testimony that is both material 

and relevant to this action, and that would expound on Dubina’s pervious testimony, it is axiomatic 

that plaintiff and WHIDC’s request to depose Wynn is granted. During the oral argument before 

the court on April 2, 2024, the City's counsel mentioned that Wynn might no longer be employed 

by the City. Should this be accurate, the City is directed to furnish plaintiff and WHIDC with 

Wynn’s most recent known address within fifteen (15) days following the issuance of this court's 

decision.

Separately, the City has failed to respond to two demands for documents made on February 

4, 2022 and November 2, 2022. In accordance with a prior compliance order, this court ordered 

the City to provide documents related to records in its possession for the period of two years prior 

to and including the date of the accident. It is indisputable, especially considering this court’s 

previous directives, that plaintiff and WHIDC are expressly entitled to obtain these documents, 

encompassing records, agreements, and email correspondence pertaining to the plaza, its 

condition, design, installation, maintenance, and repair for the two-year period leading up to and 

including the date of the accident. Consequently, the request made by plaintiff and WHIDC for 

these records is granted, and the City is directed to furnish them.

Motion Seq. 005

INDEX NO. 157354/2020

NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 04/03/2024

3 of 5 [* 3]
157354/2020 PLANA, DIONISIA vs. UNITED CHRISTIAN

Motion No. 003 004 005

Page 4 of 5

Finally, WHIDC’s request for additional IMEs is granted. WHIDC correctly highlights 

that there is no prejudice to plaintiff attending further IMEs, whereas WHIDC would be prejudiced 

in its defense without them. WHIDC acknowledges it did not comply with the original IME time 

frames (within 60 days of plaintiff’s deposition per the Case Scheduling Order), but states the 

oversight was inadvertent. The court credits and accepts that assertion, and deems plaintiff's 

opposition, primarily centered on highlighting WHIDC’s perceived non-compliance with court 

orders, as unpersuasive. In addition, in this case, where plaintiff is alleging injuries to her cervical 

spine, lumbar spine, right shoulder, left shoulder, and left-hand necessitating surgery, it is 

unquestionable that the requested IMEs are both material and relevant to the defense of this action. 

Plaintiff acknowledged this fact during oral arguments before the court on April 2, 2024. Indeed,

at oral argument, plaintiff confessed that plaintiff’s opposition was primarily based on hostility

towards WHIDC’s non-compliance with court orders rather than a genuine belief that WHIDC 

was not entitled to additional IMEs based on the alleged injuries.

Although this court promotes adherence to court orders as an essential and pivotal element 

in achieving a just outcome, fidelity to this principle must occasionally give way to the court's 

fundamental duty not to disadvantage any party or hinder their ability to represent their clients in 

the most exemplary manner. As such, it is axiomatic that WHIDC is entitled to conduct physicals 

relating to plaintiff’s alleged neurological and spinal injuries. Plaintiff’s assertion that IMEs should 

have been conducted within conducted within three weeks rather than three months is 

unpersuasive, particularly where, as here, the IMEs would have been noticed and conducted prior 

to the instant motion practice if plaintiff had simply agreed to a slightly longer period than plaintiff 

would have ideally preferred. Where, as here, WHIDC attempted to obviate the need for the instant 

motion practice by communicating in good faith with plaintiff, the court does not agree with 

plaintiff’s assertions that WHIDC’s conduct is willful and contumacious. Rather, on balance, 

WHIDC is simply requesting examinations material to its defense. And WHIDC, in this court’s

assessment, is entitled to those material and necessary examinations. As such, it is hereby 

ORDERED that Motion Seq. 003 is denied to the extent that plaintiff’s request to depose 

Guzman is denied; and it is further 

ORDERED that Motion Seq. 004 is granted to the extent that plaintiff and WHIDC’s 

request to depose Wynn, is granted and said deposition shall be conducted within sixty (60) days 

of this order; and it is further 

ORDERED that if Wynn is no longer employed by the City, the City shall provide Wynn’s

last known address within fifteen (15) days of this order and Wynn’s deposition shall be held 

forthwith thereafter in accordance with any subpoenas issues to procure Wynn’s appearance; and 

it is further

ORDERED that Motion Seq. 004 is further granted to the extent that the City is directed to 

respond, within sixty (60) days of this order, to previous demands for documents made on February 

4, 2022 and November 2, 2022 for the period of two years prior to and including the date of the 

accident, including but not limited to records, agreements, and email correspondence pertaining to 

the plaza, its condition, design, installation, maintenance; and it is further 

INDEX NO. 157354/2020

NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 04/03/2024

4 of 5 [* 4]
157354/2020 PLANA, DIONISIA vs. UNITED CHRISTIAN

Motion No. 003 004 005

Page 5 of 5

ORDERED that the City’s failure to provide the requested records within the timeframe 

allotted may result in the striking of the City’s answer and further sanctions as deemed appropriate

by this court; and it is further 

ORDERED that if the City is unable to provide the requested records within the timeframe

allotted, the City shall produce an affidavit from an affiant with personal knowledge detailing all

efforts that the City has made to secure the requested records within the sixty (60) days of this

order; and it is further

ORDERED that Motion Seq. 005 is granted to the extent that plaintiff is to appear for a 

further independent neurological and spinal medical examinations before Drs. Bender and Bendo, 

or other properly designated physicians, within sixty (60) days of the date of this order; and it is 

further

ORDERED that the parties are directed to appear for a compliance conference before the 

court in Part DCM located on the first floor of the courthouse located at 80 Centre Street, on June 

4, 2024 at 2:00 PM. 

This constitutes the decision and order of the court. 

4/3/2024

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

CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

GRANTED DENIED X GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

INDEX NO. 157354/2020

NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 04/03/2024

5 of 5 [* 5]