Lestingi v. City of New York
| Decision Date | 07 November 1994 |
| Citation | 618 N.Y.S.2d 731,209 A.D.2d 384 |
| Parties | Eleanor LESTINGI, Appellant, v. CITY OF NEW YORK, Respondent, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Rubert & Gross, P.C., Brooklyn (Soledad Rubert, of counsel), for appellant.
Paul A. Crotty, Corp. Counsel, New York City (Elizabeth S. Natrella, of counsel; Pam J. Lazear, on the brief), for respondent.
Before THOMPSON, J.P., and MILLER, O'BRIEN, SANTUCCI and JOY, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Lerner, J.), dated March 30, 1993, which denied her motion to strike the answer of the defendant City of New York, and granted the cross motion of the defendant City of New York for a protective order to the extent of vacating Item No. 14 of the plaintiff's combined demand, vacating the plaintiff's notice for discovery and inspection with the exception of Item No. 13, and limiting Item Nos. 9, 10, 12, and 13 of the plaintiff's combined demand to records of two months prior to the date of the accident.
ORDERED that the order is modified, on the law, by (1) deleting the provision thereof which vacated Item No. 14 of the plaintiff's combined demand and substituting therefor a provision limiting Item No. 14 to records two months subsequent to the accident, and (2) amending the provision which limited Item Nos. 9, 10, 12, and 13, to include records both two months prior to and subsequent to the date of the accident; as so modified, the order is affirmed, with costs to the plaintiff, and the time for the City of New York to provide the material in question is extended until 30 days after service upon it of a copy of this decision and order, with notice of entry.
On February 3, 1990, the plaintiff was involved in an automobile accident at a certain intersection in Queens County. She subsequently commenced this action against, inter alia, the City of New York, alleging that the accident was caused by a defective traffic signal. She thereafter sought various disclosure of records and reports about prior and subsequent accidents at the intersection, maintenance and repair records concerning the traffic signal, and complaints about the intersection.
Since there has been no showing that the City of New York's failure to timely disclose these items was willful, contumacious, or in bad faith, the court correctly denied a plaintiff's motion to strike its answer (see, Arena v. City of New York, 196 A.D.2d 471, 601...
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...willful, contumacious, or in bad faith" (Harris v. City of New York, 211 A.D.2d 663, 664, 622 N.Y.S.2d 289; see, Lestingi v. City of New York, 209 A.D.2d 384, 618 N.Y.S.2d 731). In the instant case, the court did not improvidently exercise its discretion in striking the appellant's answer, ......