Clark v. CLPF-Broadway Knolls, L.P.

• Decision Date: 21 January 2021
• Docket Number: Mot. Seq. 001 MotD
• Citation: 2021 NY Slip Op 32996 (U)
• Parties: FELICIA CLARK, Plaintiff, v. CLPF-BROADWAY KNOLLS, L.P., BRIGHTVIEW LANDSCAPES, LLC, INDIVIDUALLY and as d/b/a BRIGHTVIEW and BR1CKMAN FACILITY SOLUTIONS, Defendants. Index No. 621336/2016
• Court: New York Supreme Court

2021 NY Slip Op 32996(U)

FELICIA CLARK, Plaintiff,
v.
CLPF-BROADWAY KNOLLS, L.P., BRIGHTVIEW LANDSCAPES, LLC, INDIVIDUALLY and as d/b/a BRIGHTVIEW and BR1CKMAN FACILITY SOLUTIONS, Defendants.

Index No. 621336/2016

Mot. Seq. No. 001 MotD

Supreme Court, Suffolk County

January 21, 2021

Unpublished Opinion

MOTION DATE 6/30/20

ADJ. DATE 7/2/20

PHILIP J. RIZZUTO, ESQ. Attorney for Plaintiff

LEWIS BRISBOIS BISGAARD, ESQS. Attorney for Defendant CLPF-Broadway Knolls, L.P.

CHESNEY, NICHOLAS & BROWER, LLP Attorney for Defendant Brightview Landscapes, LLC, Individually and d/b/a Brightview and Brickman Facility Solutions

Hon. GEORGE M. NOLAN Justice

Upon the following papers read on this motion to dismiss: Notice of Motion/ Order to Show Cause and supporting papers by defendants, dated May 27, 2020; Notice of Cross Motion and supporting papers __; Answering Affidavits and supporting papers by plaintiff, by June 23, 2020; Replying Affidavits and supporting papers by defendants, dated June 30, 2020; Other__; it is

ORDERED that the motion by defendants Brightview Landscapes, LLC and Brightview Enterprise Solutions, LLC for, inter alia, an order dismissing the complaint is decided follows.

Plaintiff Felicia Clark commenced this action to recover damages for injuries she allegedly sustained as a result of a slip and fall on snow and ice that occurred in the parking lot of the premises

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owned by defendant CLPF-Broadway Knolls, L. P. ("CLPF"), and known as Fairway Broadway Knolls, located at 2200 Dolphin Lane in the Town of Brookhaven on January 24, 2016. Defendants Brightview Landscapes, LLC and Brightview Enterprise Solutions, LLC, f/k/a, i/s/h/a Brickman Facility Solutions, LLC (hereinafter collectively known as" Brightview") were hired by CLPF to clear snow from the premises. By her complaint, plaintiff alleges that as she was traversing the subject parking lot she fell on compacted snow and ice.

Brightview now moves, pursuant to CPLR 3126, to dismiss plaintiff's complaint on the basis that plaintiff failed to submit to a further deposition and independent medical examination ("IME'') following service of a supplemental verified bill of particulars dated January 9, 2020, containing new theories of liability, injuries and medical treatment that were not contained in the original bill of particulars. In particular, Brightview asserts that plaintiff now alleges it created the dangerous condition that resulted in her fall, that it directed her to park in the area where the accident occurred, and that Brightview had actual notice of the alleged dangerous condition prior to her fall. In addition, Brightview contends that plaintiff's allegations of epidural steroid injections to her lumbar spine, traumatic injury to her left shoulder necessitating cortisone injections with left shoulder impingement syndrome, right shoulder impingement syndrome, tingling and numbness of the left and right hands, continued low back pain radiating into the right groin and knee, and marked decrease in cognition and focusing are newly alleged injuries, and therefore, it is entitled to conduct an IME. Alternatively, Brightview seeks an order, pursuant to CPLR 3126, precluding plaintiff from presenting evidence at the time of trial as to any of the new claims of liability and injury set forth in the supplemental bill of particulars, or, pursuant to CPLR 3124, compelling plaintiff to submit to a further deposition and IM E examination.

Plaintiff opposes the motion on the grounds that it is procedurally defective, that Brightview failed to make the requisite showing of unusual or unanticipated circumstances arising subsequent to the filing of the note of issue to warrant post-note of issue discovery, that the supplemental bill of particulars at issue does not contain any new injuries or theories of liability, that Brightview failed to demonstrate it will be prejudiced if it is unable to perform a further deposition and IME. Specifically, plaintiff contends that the note of issue was filed on January 10, 2020, and Brightview, if it is alleging plaintiff failed to respond to its subsequent discovery demand, was required to move to vacate the note of issue, and since it failed to do so, the motion is untimely. Plaintiff further asserts that she has not undergone any new epidural injections, and that Brightview was aware of the allegation of actual and constructive notice, since it questioned her extensively on the issue at her deposition.

CPLR 3126 states, in pertinent part, that if a party "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed, the court may order that the issues to which the information is relevant shall be deemed resolved for purposes of the action ... or prohibit the disobedient party from supporting or opposing designated claims or defenses ... from producing in evidence designated things or items of testimony ... or from using certain witnesses" (see Wright v Mount Vernon Hosp., 88 A.D.3d 873, 931 N.Y.S.2d 237 [2d Dept 2011]; Dolny v Dolny, 32 A.D.3d 818, 820 N.Y.S.2d 520 [2d Dept 2006]). The nature and degree of the penalty to be imposed pursuant to CPLR 3126 generally is a matter left to the trial court's discretion (see Roug Kang Wang v Chien-Tsang Lin, 94 A.D.3d 850, 941 N.Y.S.2d 717 [2d Dept 2012]; Isaacs v Isaacs, 71 A.D.3d . 951, 897 N.Y.S.2d 225 [2d Dept 201...