Rivera v. Roman Catholic Diocese Brooklyn

• Citation: 2017 NY Slip Op 31633 (U)
• Decision Date: 16 June 2017
• Docket Number: Index Number 5090 / 2015
• Parties: JOSHUA RIVERA, an infant by his father and guardian, HERNANA RIVERA, and HERNANA RIVERA, Individually, Plaintiff, v. ROMAN CATHOLIC DIOCESE OF BROOKLYN AND QUEENS, ST. STANISLAUS ROMAN CATHOLIC CHURCH d/b/a ST. STANISLAUS R C CHU and SAINT STANISLAUS KOSTKA SCHOOL, Defendants.
• Court: United States State Supreme Court (New York)

2017 NY Slip Op 31633(U)

JOSHUA RIVERA, an infant by his father and guardian,
HERNANA RIVERA, and HERNANA RIVERA, Individually, Plaintiff,
v.
ROMAN CATHOLIC DIOCESE OF BROOKLYN AND QUEENS,
ST. STANISLAUS ROMAN CATHOLIC CHURCH d/b/a ST. STANISLAUS
R C CHU and SAINT STANISLAUS KOSTKA SCHOOL, Defendants.

Index Number 5090 / 2015

NEW YORK SUPREME COURT - QUEENS COUNTY IA Part 39

FILED: June 22, 2017
June 16, 2017

Present: HONORABLE LESLIE J. PURIFICACION Justice

Motion Date 09/15/ 2016

Motion Seq. No. 1

The following papers numbered 1 to 12 read on this motion by plaintiff to strike defendants' answer for failure to comply with discovery demands, and alternatively, to compel defendants to provide the evidence listed below by a date certain or to be precluded from offering evidence of the same at trial; and cross motion by defendant for a protective order against the production of the names and addresses of certain witnesses, pursuant to CPLR 3103, and to compel plaintiffs to produce the mother of the infant plaintiff for examination before trial, pursuant to CPLR 3124.

	Papers; Numbered
Notice of Motion - Affidavits - Exhibits	1 - 4
Notice of Cross Motion - Affidavits - Exhibits	5 - 8
Answering Affidavits - Exhibits	9 - 10
Reply Affidavits	11-12

Upon the foregoing papers it is ordered that the motion and cross motion are determined as follows:

This is an action arising from a slip/trip and fall accident at a school. The accident occurred on February 3, 2015, within the building known as St. Stanislaus Kostka Catholic

Page 2

School located at 57-15 61^st Street, in Queens, New York. More specifically, the accident occurred on an interior stair case located to the right side of the school (if facing the premises). As a result of the subject accident, plaintiff fractured his left wrist.

A preliminary conference was held on October 29, 2015, wherein the court ordered defendants to provide discovery responses to the outstanding demands. It is alleged that although the court ordered defendants to provide certain discovery, defendants failed to fully comply with the order. Specifically, plaintiffs sought pictures, documents and information related to subsequent repairs performed on the subject staircase where the accident occurred. Plaintiffs attempted to explain that such information is not privileged and is discoverable as the information sought was requested to help prove causation, maintenance and control. Defendants, on the other hand, objects to discovery of the same and contend that there is no issue of maintenance and control. Nonetheless, the said discovery remains outstanding, and plaintiff moves for, inter alia, discovery of evidence of the post accident repairs. Defendants oppose the motion and cross move for a protective order of other items sought to be discovered. Plaintiffs oppose the cross motion.

Discussion

The branch of the motion which seeks to strike defendants' answer for failure to comply with discovery demands, is denied. A court may strike an answer as a sanction if a defendant "refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed" (CPLR 3126; see Thompson v. Dallas BBQ, 84 A.D.3d 1221, 923 N.Y.S.2d 357; Mazza v. Seneca, 72 A.D.3d 754, 899 N.Y.S.2d 294). However, the drastic remedy of striking an answer is inappropriate absent a clear showing that the defendant's failure to comply with discovery demands was willful or contumacious (see Polsky v. Tuckman, 85 A.D.3d 750, 924 N.Y.S.2d 830; Moray v. City of Yonkers, 76 A.D.3d 618, 906 N.Y.S.2d 508; Pirro Group, LLC v. One Point St., Inc., 71 A.D.3d 654, 896 N.Y.S.2d 152; Dank v. Sears Holding Mgt. Corp., 69 A.D.3d 557, 892 N.Y.S.2d 510). Here, the plaintiffs failed to make such a showing. The record indicates that defendants, in their combined response to plaintiffs' demands, dated November 12, 2016, provided post-accident photographs of the steps, which were taken March 31, 2015. Defendants also informed plaintiffs that no photographs of the staircase from prior to the incident were in existence. In addition, as per the same response, defense counsel allowed plaintiffs' counsel to personally inspect and take photographs of the current condition of the steps, which occurred on May 31, 2016. It appears that plaintiffs were provided with everything that could...