New York City Tr. Auth. v Progressive Ins. Co.

2024 NY Slip Op 31076(U)

April 1, 2024

Supreme Court, New York County

Docket Number: Index No. 450329/2023

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.
[FILED: NEW YORK COUNTY CLERK 04/01/2024 04:13 P~ 

NYSCEF DOC. NO. 20 

INDEX NO. 450329/2023 

RECEIVED NYSCEF: 04/01/2024 

PRF.Sl<:NT: 

SUPREME COURT OF THE STATE OF NEW YORK 

NEW YORK COUNTY 

HON. DENISE M DOMINGUEZ PART 

Ju.\'fice 

35M 

---------------------------------------------------------------------------------X INDEX NO. 450329/2023 

NEW YORK CITY TRANSIT AUTHORITY, MTA BUS 

COMPANY, MANHATTAN AND BRONX SURFACE 

TRANSIT OPERATING AUTHORITY, METROPOLITAN 

TRANSPORTATION AUTHORITY, KEITH JOSEPH 

Petitioners 

MOTION SEQ. ~O. 001 

- V - DECISION AND ORDER ON 

MOTION 

PROGRESSIVE INSURANCE COMPANY, HARMON LINDER 

AND ROGOWSKY, MARIE MARSEILLE, 

Respondents 

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

The following e-filed documents, listed by l\'YSCEF document number (Motion 001) 2, 15, 16, 17, 18, 19 

were read on this motion to/for CONTEMPT 

Petitioners (collectively TRANSIT), move by Order to Show Cause pursuant to CPLR 

3101, CPLR 3124, CPLR 2308, Judiciary Law 753, Judiciary Law 754, Judiciary Law 756 and 

Judiciary Law 773 for an order holding (1) Respondent PROGRESSIVE INSURANCE 

COMP ANY (PROGRESSIVE) in contempt, (2) awarding TRANSIT damages to be determined 

at a future date, and (3) compcl!ing PROGRESIVE to comply with the subpoenas duces tecum 

previously served. 

for the reasons that follow and upon hearing oral arguments, this Order to Show Cause is 

granted in part as to PROGRESSIVE. 

Background 

Following a motor vehicle accident on July 23, 2017, at 8th Avenue near West 46th Street 

m Manhattan, Respondent MARIE MARSEILLE commenced a negligence action against 

TRANSIT in Supreme Court, 1\'.ew York County, under Index 159418/2018. 

450329/2023 NEW YORK CITY TRANSIT AUTHORITY ET AL vs. PROGRESSIVE INSURANCE 

COMPANY ET AL 

Motion No. 001 

1 of 4 

Page 1 of4 

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[FILED: NEW YORK COUNTY CLERK 04/01/2024 04:13 P~ 

NYSCEF DOC. NO. 20 

INDEX NO. 450329/2023 

RECEIVED NYSCEF: 04/01/2024 

In connection with TRANSIT's defense, TRANSIT sought records regarding 

MARSEILLE records relating to a prior October 16, 2013, automobile accident and subsequent 

litigation. Specifically, TRANSIT sought the non-privileged legal file from MARSEILLE's prior 

counsel, Respondent LINDER & ROGOWSKY and the records from Respondent 

PROGRESSIVE, the no-fault provider. 

On or about September 9, 2022, TRANSIT served PROGRESSIVE with a subpoena duces 

tecum, with a duly executed HIP AA authorizations MARSEILLE authorizing the release of the 

requested records. TRANSIT then continued to correspond with PROGRESSIVE in an effort to 

obtain the records via email correspondence and telephone calls. TRANSIT also sent a letter, 

dated November 21, 2022 via UPS overnight mail to PROGRESSIVE advising that the within 

contempt proceeding would be commenced if PROGRESSIVE did not comply. To date, 

Progressive has not complied with the subpoena nor appeared in this action. 

As to Respondent LI DER AND ROGOWSKY, during oral arguments, TRANSIT 

informed the Court that LINDER AND ROGOWSKY had complied with the subpoena. As per 

the respective parties' stipulation, this instant Order to Show Cause is withdrawn against 

HARMON LINDER AND ROGOWSK Y (NYSCEF Doc. 18). 

Discussion 

Holding a party in civil contempt is a severe measure not to be applied lightly. Thus it is 

incumbent upon the party seeking the relief to show that the uncomplying party's actions were 

"calculated to, or actually did defeat, impair, impede, or prejudice [ a party's J rights or remedies" 

(Taveras v. Gen. Trading Co., 73 AD3d 659 [l st Dept 201 0]; Rupp-Elmasri v. Elmasri, 305 AD2d 

394 [I st Dept 2003]). 

450329/2023 NEW YORK CITY TRANSIT AUTHORITY ET AL vs. PROGRESSIVE INSURANCE 

COMPANY ET AL 

Motion No. 001 

2 of 4 

Page 2 of 4 

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[FILED: NEW YORK COUNTY CLERK 04/01/2024 04:13 P~ 

NYSCEF DOC. NO. 20 

INDEX NO. 450329/2023 

RECEIVED NYSCEF: 04/01/2024 

Further, regarding subpoenas during litigation, if the documents or items sought are 

relevant to the prosecution or defense and are in the control of the party, then the party must turned 

them over (see e.g. Kapon v. Koch, 23 NY3d 32 11 NE3d 709 l2014]; see State ex rel. Murra_v v. 

Baumslag, 134 A D3d 45 1 [1st Dept 2015 ]). 

Here, TRANSIT in its papers has shown that as a result of the July 23, 2017 accident, 

MARSEILLE is alleging serious injuries including injuries to her cervical and lumbar spine. 

TRANSIT has further shown that in 2013, approximately four ( 4) years before, MARSEILLE was 

in another litigated automobile related accident in which she alleged sustaining injuries to the same 

areas including her cervical and lumbar spine. 

Further, TRANSJT's subpoena to PROGRESSIVE is very specific in the documents that 

it seeks and includes the claim number for the 2013 accident. Yet PROGRESSIVE has not 

responded to the subpoena nor has appeared in this instant proceeding. 

Accordingly, this Court finds that Transit has shown that the materials sought are material 

and necessary to TRANSIT's defense in the underlying personal injury action and that 

PROGRESSIVE is compelled to tum over the records within 45 days from the date of entry of this 

Order (see CPLR 3101; CPLR 3124; CPLR 2308; Kapon, 23 NY3d 32 11 NE3d 709 ; State ex 

rel. Murray, 134 AD3d 451). Upon noncompliance by PROGRESSIVE, TRANSIT may move 

again for contempt. 

In accordance with the above, it is hereby 

ORDERED that Petitioners' motion by Order to Show Cause is granted only against 

Respondent PROGRESSIVE INSliRANCE COMP ANY to the extent that PROGRESSIVE is 

compelled to tum over the documents requested in the subpoena within 45 days from the date of 

entry of this ORDER; it is further 

450329/2023 NEW YORK CITY TRANSIT AUTHORITY ET AL vs. PROGRESSIVE INSURANCE 

COMPANY ET Al 

Motion No. 001 

3 of 4 

Page 3 of4 

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[FILED: NEW YORK COUNTY CLERK 04/01/2024 04:13 P~ 

NYSCEF DOC. NO. 20 

INDEX NO. 450329/2023 

RECEIVED NYSCEF: 04/01/2024 

ORDERED that Petitioners arc to serve PROGRESSIVE in compliance with CPLR 311, 

via certified mail return receipt requested, and submit proof of service upon the CLERK; it is 

further 

ORDERED that Petitioners' ORDER TO SI !OW CAUSE against Respondents, MARIE 

MARSEILLE and HARMON LINDER AND ROGOWSKY are deemed withdrav-m; and it is 

further 

ORDERED that counsel for Petitioners shall serve a copy of this Order with notice of entry 

within 20 days upon all Respondents by certified mail return receipt and electronic filing upon the 

Clerk of the Court and the Respondents who appeared. 

This constitutes the Decision and Order of the Court. 

4/1/2024 

DATE 

CHECK ONE: 

APPLICATION: 

CHECK IF APPROPRIATE: 

- CASE DISPOSED 

GRANTED □ DENIED 

SETTLE ORDER 

INCLUDES TRANSFER/REASSIGN 

Di 

DENISE M DO 

NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

450329/2023 NEW YORK CITY TRANSIT AUTHORITY ET AL vs. PROGRESSIVE INSURANCE 

COMPANY ET AL 

Motion No. 001 

4 of 4 

□ REFERENCE 

Page 4 of 4 

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