Norman v. 659 Rest. Inc., Index 010280/2016

CourtUnited States State Supreme Court (New York)
Writing for the CourtMAURICE E. MUIR, JUDGE
Citation2021 NY Slip Op 32605 (U)
PartiesBERRY NORMAN, Plaintiff, v. 659 REST. INC. d/b/a MERCURY BAR and 659 REAL TY LLC, Defendants. 659 REST. INC. d/b/a MERCURY BAR and 659 REALTY LLC, Third-Party Plaintiffs, v. ELITE PLUS SECURITY LLC, Third-Party Defendant.
Decision Date29 January 2021
Docket NumberIndex 010280/2016

2021 NY Slip Op 32605(U)

BERRY NORMAN, Plaintiff,

659 REST. INC. d/b/a MERCURY BAR and 659 REAL TY LLC, Defendants.

659 REST. INC. d/b/a MERCURY BAR and 659 REALTY LLC, Third-Party Plaintiffs,

ELITE PLUS SECURITY LLC, Third-Party Defendant.

Index No. 010280/2016

Supreme Court, Queens County

January 29, 2021

Unpublished Opinion

Motion Date: 1/21/21

Motion Cal. No. 31

Motion Seq. No. 10



The following papers numbered 1 to 4 were read on this motion by 659 Rest. Inc. d/b/a/ Mercury Bar and 659 Realty LLC ("Mercury Bar" or "defendant") for Order for the following relief: a) dismissing plaintiffs verified complaint and amended complaint, pursuant to CPLR § 3126; alternatively, b) vacating plaintiffs Note of Issue and Certificate of Readiness for Trial, pursuant to 22 NYCRRR 202.21; and c) directing plaintiff and third-party defendant to provide the outstanding discovery within 30 days, and extend dispositive motion deadline for 120 days after completion of discovery.

Papers Numbered

Notice of Motion-Affirmation-Exhibits-Service.............. ......................


Upon the foregoing papers, it is ordered that this motion is determined as follows:



This is an action to recover damages for personal injuries. Specifically, Berry Norman ("Mr. Norman" or "plaintiff) alleges that on March 19, 2016, he was a patron at 659 Rest. Inc. d/b/a Mercury Bar ("Mercury Bar") when he was allegedly assaulted by its employee, agent and/or security guard. As a result, on September 1, 2016, the plaintiff commenced the instant action against Mercury Bar and 659 Realty LLC ("659 Realty') (collectively, the "defendants"). On October 31, 2016, issue was joined, wherein defendants interposed an answer. Thereafter, on or about February 3, 2017, Mercury Bar and 659 Realty commenced a third-party action against Elite Plus Security LLC ("Elite Plus Security"). On June 8, 2017, the court issued a preliminary conference order ("PCO"), which directed the parties to conduct examinations before trial ("EBT") on or before September 20, 2017, inter alia. On October 16, 2017, the court issued a compliance conference order ("CCO"), which directed the parties to complete EBTs on or before January 9, 2018. Moreover, on May 3, 2018, the Honorable Rudolph E. Greco, Jr. issued an order directing the plaintiff to provide authorizations for Lennox Hill Hospital, PCP, physical therapy, all collateral source providers, employment and tax records. Moreover, on June 26, 2018, Judge Greco issued another order, which directed Elite Plus Security to provide the complete employment files of Miguel Castro and Terrell Davis. Even though there was outstanding discovery, on May 23, 2019, the plaintiff filed the Note of Issue and Certificate of Readiness for Trial ("NOI") with the clerk of the court. Subsequently, on August 16, 2019, the Judge Greco granted Harmon, Linder &. Rogowsky's motion to be relieved as plaintiffs counsel, pursuant to CPLR § 321; and he stayed the instant action for a period of sixty (60) days. On or about November 25, 2020, the defendant filed the instant motion, wherein it argues that Elite Security Guards failed to provide the employment records and attendance records of Mr. Castro and Mr. Davis. Moreover, the plaintiff failed to provide either records from his primary care physician, employment records or collateral source records; and he failed to appear for an EBT, APPLICABLE LAW

CPLR § 3101(a)(1) provides, in relevant part, that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action." The terms "material and necessary" in this statute "must be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (Mailer of Kapon v. Koch, 23 N.Y.3d 32, 38 [2014], quoting Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406 [1968]; see also Brito v. Gomez, 33 N.Y.3d 1126 [2019]; Foster v. Herbert Slepoy Corp., 74 A.D.3d 1139 [2d Dept 2010]). At the same time, a party is "not entitled to unlimited, uncontrolled, unfettered disclosure" (Geffner v. Merry Med. Or., 83 A.D.3d 998, 998 [2d Dept 2011]; see also Quinones v. 9 E. 69th St., ILC, 132 A.D.3d 750, 750 [2d Dept 2015]). "It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims" (Crazytown Furniture v. Brooklyn Union Gas Co., 150 A.D.2d 420, 421...

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