Schlau v. City of Buffalo

• Citation: 4 N.Y.S.3d 450,2015 N.Y. Slip Op. 01369,125 A.D.3d 1546
• Parties: Kenneth M. SCHLAU, Jr., Plaintiff–Respondent, v. CITY OF BUFFALO, Buffalo Urban Renewal Agency, Western New York Arena, LLC, HSBC Arena, ADT Security Services, Inc. (ADT), Defendants–Appellants, et al., Defendants. (Appeal No. 1.).
• Decision Date: 13 February 2015
• Court: New York Supreme Court Appellate Division

125 A.D.3d 1546
4 N.Y.S.3d 450
2015 N.Y. Slip Op. 01369

Kenneth M. SCHLAU, Jr., Plaintiff–Respondent
v.
CITY OF BUFFALO, Buffalo Urban Renewal Agency, Western New York Arena, LLC, HSBC Arena, ADT Security Services, Inc. (ADT), Defendants–Appellants, et al., Defendants. (Appeal No. 1.).

Supreme Court, Appellate Division, Fourth Department, New York.

Feb. 13, 2015.

4 N.Y.S.3d 451

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York City (Gregory J. Dell of Counsel), for Defendants–Appellants.

Paul William Beltz, P.C., Buffalo (Debra A. Norton of Counsel), for Plaintiff–Respondent.

PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, and SCONIERS, JJ.

Opinion

MEMORANDUM:

125 A.D.3d 1546

Plaintiff commenced this action seeking damages for injuries he allegedly sustained when he touched the handle of an electronically secured door at HSBC Arena and sustained an electric shock. These consolidated appeals concern discovery disputes that have arisen between plaintiff and certain defendants.

125 A.D.3d 1547

In appeal No. 1, defendants City of Buffalo, Buffalo Urban Renewal Agency, Western New York Arena, LLC, HSBC Arena, and ADT Security Services, Inc. (ADT) (collectively, Arena defendants) appeal from an order that, inter alia, granted plaintiff's motion to vacate their CPLR 3216(b)(3) notice, permitted discovery to continue beyond the 90–day period set forth in the notice, and denied their cross motion seeking a scheduling order. “Supreme Court is vested with broad discretion in supervising disclosure” (Blumenthal

4 N.Y.S.3d 452

v. Tops Friendly Mkts., 182 A.D.2d 1105, 1106, 586 N.Y.S.2d 771 ), and we conclude that it did not abuse its discretion in granting plaintiff's motion to vacate the CPLR 3216(b)(3) notice. Discovery was not complete, and the Arena defendants continued to seek disclosure after serving the notice, which “was sufficient reason in and of itself to” vacate the notice (Gonzalez v. Deutsch Co., 193 A.D.2d 449, 449, 597 N.Y.S.2d 682 ; see Little v. Long Is. Jewish Med. Ctr., 231 A.D.2d 496, 498, 647 N.Y.S.2d 258 ). In addition, the court acted within its discretion in scheduling its calendar and setting timetables for discovery when it denied the Arena defendants' cross motion for a scheduling order (see Matter of Rattner v. Planning Commn. of Vil. of Pleasantville, 156 A.D.2d 521, 528, 548 N.Y.S.2d 943, appeal dismissed 75 N.Y.2d 897, 554 N.Y.S.2d 831, 553 N.E.2d 1341 ). The court also properly exercised its discretion in awarding costs on the motion to plaintiff (see Greenspan v. Rockefeller Ctr. Mgt. Corp., 268 A.D.2d 236, 237, 700 N.Y.S.2d 687 ; American Auto. Plan v. Corcoran, 166 A.D.2d 215, 215, 560 N.Y.S.2d 435 ).

Contrary to the contention of the Arena defendants in appeal No. 2, we conclude that the court properly denied their motion...