Decided September 13, 2010.
William A. Gallina, Esq., Bronx, NY, for plaintiff.
New York City Corporation Counsel, Gregory Mouton, ACC, New York, NY, for defendant.
Pursuant to a compliance conference order dated July 13, 2010, plaintiff was given an opportunity to submit by letter application, as opposed to motion, a request for certain information. Although defendant City was to respond to the application on or before August 24, 2010, it has not done so.
Plaintiff's action arises from of a trip and fall which allegedly resulted from the improper placement of a crosswalk marker. (Letter of David L. Engelsher, Esq., dated July 20, 2010 [Letter]). Plaintiff contends that City had prior written notice of the defect, that City has failed to comply with numerous court orders requiring that it provide a response to her March 11, 2009 notice for discovery and inspection and that City ultimately objected to providing the requested discovery on the ground that the requests were overbroad and irrelevant, providing in response only irrelevant documents. She thus argues that City's answer should be stricken or that the issue of prior written notice should be resolved in her favor. ( Id.).
In her March 2009 notice, plaintiff requested information following the deposition of City's witness on February 23, 2009. She sought, for the period of five years prior to and including November 30, 2004, the date of her accident:
(1) the job file for the intersection in question;
(2) field inspection reports for the intersection in question;
(3) all completed work orders received from Iberia (a contractor) for the intersection in question;
(4) all complaints made to the City of New York for similar defects (improperly applied and/or broken paint lines on crosswalks);
(5) all documents prepared by or on behalf of City's Engineering Audit Bureau for the location in question; and
(6) all documents prepared by the lab that analyzed relevant paint samples to ensure that they complied with contract requirements.
(Letter, Exh. B).
By orders dated May 23, 2009, July 15, 2009, and January 4, 2010, City was directed to respond to plaintiff's March 2009 notice. ( Id., Exhs. C, D). By order dated March 30, 2010, the parties agreed that City would provide the documents requested in items 1, 2, 3, and 6 of the March 2009 notice by May 14, 2010, while City represented that the documents requested in items 4 and 5 had been previously provided. ( Id., Exh. C).
By supplemental response dated June 22, 2010, City stated that it had searched for the records and annexed: (1) a letter from the Supervisor of the Traffic Unit of City's Department of Transportation stating that a search for red light cameras at the location for a period of five years prior to and including the date of plaintiff's accident had produced no records; (2) a letter from the Supervisor of the Traffic Unit of City's Department of Transportation stating that a search for roadway markings at the location for a period of two years prior to and including the date of plaintiff's accident produced a crosswalk marking order, drawing, and field inspection report work order; and (3) a letter from the Supervisor of the Traffic Unit of City's Department of Transportation stating that a search of the location for five years prior to and including plaintiff's accident produced only a field inspection report. ( Id., Exh. F).
While City's supplemental response reflects that it had searched for some of the requested documents, its response does not demonstrate that it fully complied with the discovery orders, having failed to search for all of the documents it had agreed to provide, including: (1) the job file for the intersection; (2) field inspection reports for the intersection; (3) completed work orders received from Iberia for the intersection; and (4) all documents prepared by the lab that analyzed the relevant paint samples.
In Figdor v City of New York, the Appellate Division, First Department, took the opportunity "to encourage the IAS courts to employ a more proactive approach [to City's discovery delays]; upon learning that a party has repeatedly failed to comply with discovery orders, [the IAS courts] have an affirmative obligation to take such additional steps as are necessary to ensure future compliance."( 33 AD3d 560 [1st Dept 2006] ["While discovery has trickled in with the passage of each compliance conference, the cavalier attitude of defendant, resulting as it has in substantial and gratuitous delay and expense, should not escape adverse consequence."]). Subsequently, in response to New York City Corporation Counsel Michael A. Cardozo's "Ten Suggestions for Court Reform," (NYLJ, Dec. 7, 2009, at 6), eighteen Justices of the Appellate Division, First Department observed that:
a vast amount of inefficiency impeding the resolution of litigation is also created by the city's oft-demonstrated cavalier attitude toward its discovery obligations. The city's almost routine failure to timely and fully cooperate with its discovery obligations, even in the face of repeated court orders, is regularly confronted by city part judges attempting to solve the city's intransigence.
("Cardozo's Court Reform Suggestions Are Misguided, Misplaced and Insulting," Letters to the Editor, NYLJ, Dec. 17, 2009, at 2, col 1).
Here, City was directed in four court orders between May 2009 and March 2010 to provide the documents and failed to provide them or show that it made a diligent effort to do so, and it has failed to even respond to plaintiff's letter application. Consequently, it has, in effect, conceded plaintiff's allegations, and thus, plaintiff has clearly established that City's failure to comply fully with the court orders is willful and contumacious. (CPLR 3126; Yoon v Costello , 29 AD3d 407 [1st Dept 2006] [sanction of striking answer warranted by defendant's repeated and persistent failure to comply with discovery orders] Mendez v City of New York , 7 AD3d 766 [2d Dept 2004]; cf Figdor, 33 AD3d 560 [granting conditional order]).
Accordingly, it is hereby
ORDERED, that defendant City of New York's answer is stricken; it is further
ORDERED, that an assessment of damages against defendant City of New York is directed; and it is further
ORDERED, that a copy of this order with notice of entry be served upon the Clerk of the Trial Support Office (Room 158), who is directed, upon the filing of a note of issue and a statement of readiness and the payment of the appropriate fees, if any, to place this action on the appropriate trial calendar for the assessment herein directed.
This constitutes the decision and order of the court.