Choinski v. Bank of New York Lease Servicing, 2008 NY Slip Op 31969(U) (N.Y. Sup. Ct. 7/9/2008)
Citation | 2008 NY Slip Op 31969 |
Decision Date | 09 July 2008 |
Docket Number | No. 350608/03,Motion Cal. No: 10,No. 35038/05,Motion Seq. No: 12,No. 350484/05,0002805/2003,350608/03,35038/05,350484/05 |
Parties | PAWEL CHOINSKI, KAZIMIERZ KUKACKI, and MAREK TRUSKOLASKI, Plaintiffs, v. BANK OF NEW YORK LEASE SERVICING, Defendant. BANK OF NEW YORK, INC. s/h/a BANK OF NEW YORK LEASING SERVICING, Third-Party Plaintiff, v. AMERICAN HI-TECH, INC., Third-Party Defendant. AMERICAN HI-TECH, INC., Second Third-Party Plaintiff, v. AMERICAN SCAFFOLDING CORP., Second Third-Party Defendant. AMERICAN HI-TECH, INC., Third Third-Party Plaintiff, v. VALEIRO ASSOCIATES CONSULTING ENGINEERS, P.C., Third Third-Party Defendant. AMERICAN HI-TECH, INC., Fourth Third-Party Plaintiff, v. SKY CLIMBER, INC., Fourth Third-Party Defendant. |
Court | New York Supreme Court |
Upon the foregoing papers, it is ordered that the motion and cross-motion are disposed of as follows:
This is a labor law action for injuries allegedly sustained on November 29, 2001 by plaintiffs, laborers at a construction work site, while they were standing on top of a mechanical platform which was at an elevation of approximately 100 feet. Plaintiffs move for an order, pursuant to CPLR § 3126, striking the answers of defendant/third-party plaintiff Bank of New York Lease Servicing (hereinafter referred to as BNY), third-party defendant/second, third and fourth third-party plaintiff American Hi-Tech, Inc. (hereinafter referred to as AHT), and third third-party defendant Valeiro Associates Consulting Engineers, P.C. (hereinafter referred to as VACE), due to their alleged failure to comply with discovery, setting this action down for an inquest on damages and extending their time to file a note of issue in light of the outstanding discovery. In the alternative, plaintiffs seek to resolve the issue of liability in their favor and against BNY, AHT, and VACE, and allowing discovery to proceed as to damages only, or compelling BNY, AHT and VACE, under a conditional order of preclusion, to provide the court-ordered discovery, pursuant to CPLR § 3124. AHT cross-moves for an order, pursuant to CPLR § 3103, granting a protective order against plaintiffs' November 19, 2007 "demand" to conduct a deposition of AHT's investigator.
Kuzmin v. Visiting Nurse Service of New York, 22 A.D.3d 643, 643-644 (2nd Dept. 2005); See, also, Chrostowski v. Chow, 37 A.D.3d 638 (2nd Dept. 2007); E.W. Howell Co., Inc. v. S.A.F. La Sala Corp., 36 A.D.3d 653 (2nd Dept. 2007); Shapiro v. Kurtzman, 32 A.D.3d 508 (2nd Dept. 2006); Assael v Metropolitan Transit Authority, 4 A.D.3d 443 (2nd Dept. 2004); Avenue C Const., Inc. v Gassner, 306 A.D.2d 506 (2nd Dept. 2003); Martin v Hall, 283 A.D.2d 615 (2nd Dept. 2001).
Here, upon a review of the record, there is insufficient evidence to establish the willful, deliberate and contumacious conduct on the part of either BNY, AHT, or VACE, to warrant the imposition of the severe penalty of the striking their respective pleadings. See, Botsas v. Grossman, 7 A.D.3d 654 (2nd Dept. 2004); Mabey v Winthrop University Hosp., 302 A.D.2d 371 (2nd Dept. 2003). Indeed, in light of the volume of discovery exchanged, the substantial compliance by BNY, AHT, or VACE with plaintiffs' demands, and the duplicative production of these documents necessitated by plaintiffs' incomplete file, coupled with the open-ended and indirect requests for discovery found in the papers supporting the motion, this Court finds that the instant request for discovery by plaintiff borders on the fringes of frivolity. Thus, those branches of the motion, pursuant to CPLR § 3126, seeking to strike the answers of BNY, AHT, and VACE, setting this action down for an inquest on damages and extending plaintiffs' time to file a note of issue, are denied. Likewise denied is that branch of the motion seeking the alternative relief resolving the issue of liability in plaintiffs' favor and against BNY, AHT, and VACE, and allowing discovery to proceed as to damages only.
AHT cross-moves for an order, pursuant to CPLR § 3103, granting a protective order against plaintiffs' November 19, 2007 "demand" to conduct a deposition of AHT' s investigator. Plaintiffs contend that they are entitled to, inter alia, depositions of the investigators who provided surveillance for BNY and AHT pursuant to CPLR § 3101 (i), which states, in relevant part, that 1
Gilman & Ciocia, Inc. v. Walsh, 45 A.D.3d 531 (2nd Dept. 2007); Seaman v. Wyckoff Heights Medical Center, Inc., 25 A.D.3d 598 (2nd Dept. 2006). Andon ex rel. Andon v. 302-304 Mott Street Associates, 94 N.Y.2d 740, 746 (2000); see, Espady v. City of New York, 40 A.D.3d 475 (1st Dept. 2007); Spencer v. City of New York, 293 A.D.2d 466 (2nd Dept. 2002). Vyas v. Campbell, 4 A.D.3d 417 (2nd Dept. 2004); Beckles v. Kingsbrook Jewish Medical Center, 36 A.D.3d 733 (2nd Dept. 2007); Young v. Baker, 21 A.D.3d 550 (2nd Dept. 2005). Additionally, ...
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