Kaplan v. Einy
| Decision Date | 15 November 1994 |
| Parties | Yoran KAPLAN, Plaintiff-Respondent, v. Shlomo EINY, et al., Defendants-Appellants, and Robert Elevator Company, Inc., Defendant. Shlomo EINY, et al., Third-Party Plaintiffs-Appellants, v. ROBERT ELEVATOR COMPANY, INC., Third-Party Defendant-Respondent. Yaron KAPLAN, Plaintiff-Appellant, v. Shlomo EINY, et al., Defendants-Respondents . |
| Court | New York Supreme Court — Appellate Division |
Before SULLIVAN, J.P., and CARRO, NARDELLI, WILLIAMS and TOM, JJ.
Order, Supreme Court, New York County (Karla Moskowitz, J.), entered September 27, 1993, which denied plaintiff's motion to confirm a certain report of a Special Referee with modifications and granted the cross-motion of the Einy defendants to confirm the report in its entirety, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the cross-motion is denied.
Order, same court (Lorraine Miller, J.), entered on or about April 14, 1994, which directed the Einy defendants to provide additional disclosure that had been previously denied by the initial IAS justice, unanimously affirmed, with costs.
This is a personal injury action in which plaintiff, a resident of 700 West End Avenue (the "Premises"), suffered severe injuries when he stepped through the open service elevator doors and fell down the elevator shaft. The Einy defendants (Shlomo, Uzi and Rachel) own the building and defendant Robert Elevator Company, Inc. apparently serviced the elevator.
During plaintiff's deposition of defendant Uzi Einy, defendant's counsel was obstructive and argumentative, frequently directed his client not to answer pertinent questions, refused to authenticate defendant's photographs of the accident scene, and, at one point, refused to allow his client to spell the name of his co-defendant brother.
Although defendants pleaded an affirmative defense of workers' compensation, defense counsel refused to allow his client to provide answers as to the issuance of W-2 forms by defendants' real estate businesses and Mr. Einy's memory became sketchy as to whether the building had a superintendent during the year of the accident, and as to the existence and location of payroll records as well as the names of other employees who might have knowledge of the accident. Similarly, despite exhibits addressed to an entity known as Salomon Realty regarding the Premises, Mr. Einy denied ever having heard of that entity, although he later admitted being its co-owner.
In addition, because the elevator had been repaired after the accident, plaintiff's counsel attempted to determine its condition immediately prior to the accident and sought to elicit: accident reports, post-accident repairs and any engineer's inspections conducted, at defendant's behest, prior to their purchase of the building. Defendant's counsel thereafter repeatedly objected and refused to allow his client to answer any questions regarding the last two inquiries.
Plaintiff then moved to compel disclosure (pursuant to CPLR 3124) and to preclude (pursuant to CPLR 3126). Thereafter, Justice Moskowitz, pursuant to stipulation, appointed a referee to supervise disclosure with the referee to report to the court upon the completion of discovery.
The referee's subsequent brief report, the substantive portion of which is approximately one-page long, is silent as to: the authentication of the photographs; business certificates for Salomon Realty as well as an affidavit clarifying its relationship to the building; inspection reports generated upon the purchase of the Premises; and the further deposition of Uzi Einy. These items of discovery were specifically requested by plaintiff.
Plaintiff moved to confirm the report with modifications, and requested the foregoing discovery which was not addressed in the referee's report. Defendants cross-moved to confirm the report and maintained that by failing to address plaintiff's discovery demands, the referee impliedly rejected them. Justice Moskowitz confirmed the report and refused to incorporate the modifications requested by plaintiff. Plaintiff thereafter filed a timely notice of appeal.
Plaintiff conducted the deposition of defendant Shlomo Einy on November 9 and 10, 1993 and again was prevented from questioning Mr. Einy on a number of relevant issues by defense counsel. It was established, however, that a number of business entities operated out of the Building and that they shared employees. Plaintiff then conducted the deposition of non-party Zvi Einy and thereafter brought an Order to Show Cause to compel further disclosure, including the responses to inquiries concerning post-accident repairs and modifications, the continued deposition of Uzi Einy and the authentication of the elevator photographs. Defendants cross-moved for further disclosure and opposed plaintiff's motion on the grounds, inter alia, that post-accident repairs are not discoverable, that they were not obliged to authenticate photographs; and that plaintiff waived any further deposition of Uzi Einy.
In the interim, the case was transferred to Justice Lorraine Miller, who directed the attorneys to prepare a writing to dispose of the motions. The order provided, inter alia: for the continued disposition of Uzi Einy; the provision of evidence of post-accident repairs; the identification of the photographs; and the production of any unprivileged accident reports. Defendants subsequently appealed, contending that Justice Miller's order runs afoul of the doctrine of law of the case as it grants the same relief previously denied by Justice Moskowitz.
With regard to plaintiff's appeal of Justice Moskowitz' order, it is well-established that the report of a referee shall be confirmed whenever the findings contained therein are substantially supported by the record (DiIorio v. Gibson & Cushman of N.Y., 204 A.D.2d 167, 614...
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