Osterhoudt v. WALMART STORES, INC.
| Decision Date | 22 June 2000 |
| Citation | 709 N.Y.S.2d 685,273 A.D.2d 673 |
| Court | New York Supreme Court — Appellate Division |
| Parties | VIRGINIA OSTERHOUDT, Appellant-Respondent,<BR>v.<BR>WALMART STORES, INC., Respondent-Appellant. |
On August 12, 1994, plaintiff slipped and fell on a spilled substance in the aisle of defendant's store in the City of Hudson, Columbia County. Plaintiff, transported to a hospital by ambulance, ultimately required surgery on her right knee. In October 1996, this negligence action was commenced. Upon the assertion of numerous defenses, plaintiff served a notice for discovery and inspection dated December 13, 1996 seeking, inter alia, the names of all witnesses, copies of statements and reports pertaining to accidents or documents recording or detailing procedures undertaken with respect to the maintenance and/or inspection of the store. Defendant informed plaintiff that none of the requested statements existed yet advised that it would continue its efforts to locate all information which would be responsive to the demand. It specifically noted that "if and when any such documents are located, copies will be forwarded to plaintiff at that time."
Approximately seven months later, plaintiff propounded a further notice for discovery and inspection which requested, inter alia, the name and address of the maintenance person and others assigned to departments adjacent to the accident site who were working on the date of the accident, a copy of the floor plan and the dimension of aisles. Aside from objecting to the request for the floor plan, defendant again failed to forward the requested information, once more representing that it was either conducting a search therefor or would attempt to obtain the information and thereafter forward it to plaintiff. One month later, plaintiff sent a second notice for further discovery specifically seeking books, records or writings prepared or maintained by defendant in the regular course of its business with regard to floor inspections or a record of periodic inspections, cleaning and/or maintenance which occurred at or near the time of the accident. This time, defendant refused to respond to both this demand and any of the outstanding demands since plaintiff had already filed a note of issue.
In preparation for the trial commencing January 4, 1999, plaintiff subpoenaed the manager of defendant's store, expecting him to testify that defendant was unable to locate any of the information previously requested, including the names of employees working on the date of the accident. When the store manager appeared at trial in response to the subpoena, he had with him the documents that plaintiff requested in the early discovery demands. Plaintiff immediately moved to strike defendant's answer but Supreme Court denied the motion.
At the completion of testimony, defendant moved for a dismissal by contending that plaintiff failed to prove actual or constructive notice and therefore failed to make out a prima facie case. Plaintiff moved for a mistrial based upon defendant's failure to comply with discovery. Supreme Court reserved decision and sent the case to the jury, which ultimately rendered a verdict in favor of plaintiff in the amount of $125,000. Thereafter reserving decision on defendant's motion to set aside the verdict, the court scheduled a hearing to address the outstanding motions as well as its own motion to determine whether to impose sanctions pursuant to CPLR 3126 for defendant's failure to comply with discovery.
Supreme Court found that defendant willfully withheld discovery and acted in bad faith yet would not impose...
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