### 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 NEWYORK 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 INSURANCECOMPANY, HARMON LINDER ANDROGOWSKY, MARIE MARSEILLE, Respondents

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

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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-faultprovider. Onor about September9, 2022, TRANSIT served PROGRESSIVEwith a subpoenaduces tecum, with a duly executed HIPAA authorizations MARSEILLE authorizing the release ofthe 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, Progressivehas not complied with the subpoenanor 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 reliefto show that the uncomplying party's actions were "calculated to, or actually did defeat, impair, impede, or prejudice [a party's

### Jrights or remedies" 

### (Taveras v. Gen. Trading Co., 73 AD3d 

### 659 [lst Dept 201 

### 0]; Rupp-Elmasri v. Elmasri, 305 AD2d 394 [I st Dept2003]).

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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 ordefense and are in the control ofthe party, then the party mustturned them over

### (see e.g. Kapon v. Koch, 23 NY3d 32 11 NE3d 709 l2014]; 

### see State ex rel. 

### Murra_v v. Baumslag, 134 AD3d 45 1 [1st Dept2015]). Here, TRANSIT in its papers has shown that as a result ofthe July 23, 2017 accident, MARSEILLE is alleging serious injuries including injuries to her cervical and lumbar spine. TRANSIThas further shownthat in 2013, approximately four (4) yearsbefore, MARSEILLEwas inanotherlitigated automobilerelated accidentinwhich she alleged sustaininginjuriesto the same
areas includinghercervical 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 subpoenanorhas appeared inthis instant proceeding. Accordingly, this Court finds that Transithas shownthatthe materials sought are material and necessary to TRANSIT's defense in the underlying personal injury action and that PROGRESSIVE is compelled to tum overtherecords within45 days from the date ofentry ofthis 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 COMPANY to the extent that PROGRESSIVE is compelledto tum overthe documents requested in the subpoenawithin 45 days from the date of entry ofthis ORDER; it is further

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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' ORDERTO SI !OW CAUSE against Respondents, MARIE MARSEILLE and HARMON LINDERAND ROGOWSKY are deemed withdrav-m; and it is further ORDEREDthatcounsel for Petitioners shall serve acopy ofthis Orderwithnotice ofentry within 20 days upon all Respondents by 

### certified mail return receipt and electronic filing upon the Clerk ofthe Court andthe Respondents who appeared. This constitutesthe Decision and Order ofthe 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
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