Harris v. City of New York

Full title: EDWARD HARRIS, et al., Appellants, v. CITY OF NEW YORK, Respondent

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Jan 17, 1995

211 A.D.2d 663 (N.Y. App. Div. 1995)

622 N.Y.S.2d 289

Opinion

January 17, 1995

Appeal from the Supreme Court, Queens County (Price, J.).

Ordered that the order is affirmed insofar as appealed from, with costs.

The injured plaintiff, a police officer employed by the defendant, City of New York, allegedly slipped and fell on a negligently discarded horse blanket in the parking lot of the precinct building where he worked. In their ensuing personal injury action, the plaintiffs sought the depositions of certain witnesses and the disclosure of numerous records, documents, and other materials. The items demanded by the plaintiffs included, inter alia, the time and leave, personnel, roll call, and disciplinary records of the precinct custodian as well as the roll call and work assignment records of all police officers at the precinct on and prior to the date of the accident. After one of the requested depositions was conducted and the defendant produced some of the records, the plaintiffs renewed their discovery demands and also broadened them to include additional depositions and documents. The defendant again partially complied with the plaintiffs' discovery demands. Alleging that the defendant willfully failed to respond to their disclosure requests, the plaintiffs subsequently moved to strike the defendant's answer and for the entry of a default judgment in their favor or, alternatively, to compel the defendant to comply with all outstanding discovery and deposition demands. The defendant thereupon cross-moved for a protective order.

The Supreme Court granted the defendant's cross motion to the extent of striking three items of the plaintiffs' second notice for discovery and inspection as being overbroad and burdensome. The court further conditionally granted the plaintiffs' motion to the extent of directing the defendant to comply with the notices for discovery and inspection, as limited by the court, within 30 days. The plaintiffs now appeal, and we affirm.

It is well settled that the drastic remedy of striking an answer is inappropriate absent a clear showing that the failure to comply with discovery demands is willful, contumacious, or in bad faith (see, CPLR 3126; Lestingi v. City of New York, 209 A.D.2d 384; Cruzatti v. St. Mary's Hosp., 193 A.D.2d 579; Ahroni v City of New York, 175 A.D.2d 789). No such showing has been made in this case. Rather, the record supports the conclusion that the defendant made good faith efforts to comply with the plaintiffs' demands and had in fact complied with a substantial number of them. Accordingly, the court did not improvidently exercise its discretion in declining to strike the answer and in directing the defendant to comply with certain outstanding discovery demands.

Furthermore, we find unpersuasive the plaintiffs' contention that they should have been permitted to depose additional witnesses. The plaintiffs neither advised the court of the deposition requests in advance as required in the preliminary conference order, nor established the requisite factors to warrant the examination of the additional individuals (see, Colicchio v. City of New York, 181 A.D.2d 528; Ayala v. City of New York, 169 A.D.2d 530; cf., Simon v. Advance Equip. Co., 126 A.D.2d 632).

Finally, while the defendant's motion for a protective order was untimely (see, CPLR 3122), the Supreme Court nevertheless was entitled to determine whether the plaintiffs' disclosure demands were palpably improper (see, Lestingi v. City of New York, supra). Given the overly broad and burdensome nature and the questionable relevance of the second, fourth, and fifth items of the plaintiffs' second notice for discovery and inspection, the court properly struck those items (see, De Paolo v. Wisoff, 94 A.D.2d 694; Zambelis v. Nicholas, 92 A.D.2d 936). Sullivan, J.P., Rosenblatt, Altman, Hart and Friedmann, JJ., concur.