Schmidt v. Metro. Transp. Auth.

• Decision Date: 26 June 2017
• Docket Number: Index No. 605614/14,Motion Seq. No. 01
• Citation: 2017 NY Slip Op 33524 (U)
• Parties: TRAVIS SCHMIDT, Plaintiff, v. METROPOLITAN TRANSPORTATION AUTHORITY, OFFICER DERRICK REVANDER, Individually and in his official capacity as an MTA Police Officer, and OFFICER ANDRE OLIPHANT, Individually and in his official capacity as an MTA Police Officer, Defendants.
• Court: New York Supreme Court

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2017 NY Slip Op 33524(U)

TRAVIS SCHMIDT, Plaintiff,
v.
METROPOLITAN TRANSPORTATION AUTHORITY, OFFICER DERRICK REVANDER, Individually and in his official capacity as an MTA Police Officer, and OFFICER ANDRE OLIPHANT, Individually and in his official capacity as an MTA Police Officer, Defendants.

Index No. 605614/14, Motion Seq. No. 01

Supreme Court, Nassau County

June 26, 2017

Unpublished Opinion

Motion Date: 03/28/17

PRESENT: HON. DENISE L SHER, JUSTICE

DENISE L. SHER, JUDGE

The following papers have been read on this motion:

Papers Numbered
Notice of Motion, Affirmations and Exhibits	2
Affirmation in Opposition and Exhibits	3
Reply Affirmation and Exhibits	4

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

Defendants move, pursuant to CPLR § 3216, for an order striking plaintiffs Verified Complaint for failure to comply with discovery, or move, in the alternative, pursuant to CPLR § 3214, for an order compelling plaintiff to provide discovery. Plaintiff opposes the motion.

Counsel for defendants asserts that, "[p]laintiff claims that the police officers [defendants] violated his civil rights and used excessive force, among other things, resulting in permanent injuries to his neck, back, knees and head." Counsel for defendants proceeds to

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list the various injuries and/or medical treatment plaintiff has allegedly received prior to the date of incident in the subject action. Counsel adds that, "[additionally, at some point in time prior to the police incident, plaintiff began receiving Methadone treatment, but refuses to provide the records. This is despite the fact that plaintiff claims that as a result of the police incident, he is completely disabled and cannot work. It is respectfully submitted that plaintiff has placed his medical history in issue and the defendants should be entitled to complete discovery of plaintiffs medical past, especially records concerning his drug addiction and treatment as they certainly would have a bearing o his ability to maintain employment, psychiatric treatment as that also would have a bearing on his ability to maintain employment, as well as the fact that he was having a panic attack at the time of the police incident, and his orthopedic treatment for the various prior injuries."

Counsel for defendants argues that plaintiffs conduct has been "wilful and contumacious in refusing to disclose."

Counsel for defendants further contends that, "[p]laintiff has certainly placed not only his physical health, but his mental health an (sic) issue. The Bill of Particulars (page 7) alleges emotional distress, trauma and pain; post-traumatic stress and fear; psychological impairment and distress; sleep disturbances and impairment; and goes onto (sic) allege that there was an exacerbation of all such prior injuries or symptoms that may have been previously asymptomatic. It is also alleged that there is permanent residual damage and side effects to plaintiffs person both mental and physical including cognitive functioning." See Defendants' Affirmation in Support Exhibit D.

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In counsel for defendants' reply papers, counsel indicates that, "[t]he parties have conferred, in good faith, in an attempt to resolve all of the issues contained in this motion. The parties have resolved some of the issues, but not all of them...." See Defendants' Reply Affirmation Exhibits A and B.

The Court notes that the discovery issues that remain outstanding include:

1. Defendants' Demand for a Bill of Particulars Demand 11, "[s]et forth all statutes, ordinances, codes, orders, rules, regulations and/or requirements of the federal, state, county, village, town or city governments, or of any and all of their departments, divisions, agencies and bureaus, or by any duly constituted professional society and/or organization, or by contract, agreement, duty or other obligation, which any party claims defendants violated and the manner in which same occurred." (See Defendants' Affirmation in Support Exhibits B and D).

2. Defendants' Demand for a Bill of Particulars Demands 6 and 7. Counsel for defendants has requested that "[p]laintiff will supplement items 6 and 7 concerning lost earnings and special damages to the extent that plaintiff intends to prove same at the time of trial." (See Defendants' Affirmation in Support Exhibit D).

3. Expert Disclosure concerning plaintiffs expert, Earl Kean, as demanded in defendants' November 4, 2016 Notice for Discovery And Inspection ¶¶1-3. (See Defendants' Affirmation in Support Exhibit F).

4. Outstanding or Improper Authorizations.

See Defendants' Reply Affirmation Exhibits A and B.

The Court will individually address each of the outstanding items and each counsel's arguments with respect to same.

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With respect to defendants' Demand for a Bill of Particulars Demand 11, as detailed above, counsel for defendants submits that, "[t]he last three lines of the plaintiffs response to item 3 concerning the defendants' negligent conduct (page 5) reads as follows: 'otherwise failing to operate and control the train station in a safe and controlled manner and according to all New York state laws, rules, regulations, codes, or the like...' In response to item 11 demanding particulars as to those laws, rules, regulations, codes, etc. violated, plaintiff states that this is an improper demand and the court will take judicial notice, although plaintiff does allege violations of the U.S. Constitution and Civil Rights Code. As set forth in our 2/13/17 good faith letter, item 3, we requested further particularization as to those laws, etc., violated, citing a Second Department case called Kim v. A&K, [citation omitted], which is directly on point and states that at the close of discovery plaintiff must provide particularization and can not (sic) simply say that the court will take judicial notice. Despite this, annexed hereto as Exhibit E is plaintiffs discovery response dated February 6, 2017, wherein item 5 responds 'improper demand.'" See Defendants' Affirmation in Support Exhibits B, D and E.

In opposition to this demand, counsel for plaintiff asserts, "[p]laintiff has stated various statutes violated, specifically, the United States Constitution, including the 1^st, 4^th, 5^th and 14^thAmendments, 42 U.S.C. §§ 1983, 1985, 1986 and 1988. Those statutes, and the fact that Plaintiff has specifically asserted that he claims that Defendants falsely arrested him, threw him to the ground, banged his head on the ground, placed their knee on his spine, shoulder, etc. should be sufficient to give the Defendants due notice of what is being claimed. There are no secrets about what Plaintiff is claiming and as such no prejudice to the Defendants. Defendants cite Kim v. A&K Plastic Prods., [citation omitted] which they assert is directly on point and 'states that at the close of discovery plaintiff must provide particularization and can not (sic) simply say that the

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court will take judicial notice.' ... Assuming, arguendo, that Kim is directly on point, which it is not, in Kim the Second Department states as follows: We would note, however, that if, after discovery is completed, the plaintiff ascertains that there have been such violations he shall, within 30 days, serve a further bill of particulars...' (Emphasis added) The Second Department's decision therefore required that Mr. Kim only provide such particularization after all discovery is completed and only if he ascertains such violations. There is no order of preclusion mentioned... [I]t appears that the rule with respect to particularizing statutes, rules, etc. is that in certain types of cases, the plaintiff is required to provide notice to defendants of any statutes, laws, etc. violated by defendants upon which plaintiff intends to rely at trial. There are no cases which state that prior to filing a note of issue, the plaintiff is required to locate and provide notice to defendants of the particular statutes, laws, etc. or be precluded. I have located no cases involving false arrest, imprisonment, assault and battery and other claims made in Plaintiffs Complaint which require such particularization and Defendants have cited no such cases. Given that the Defendants are the operators of a police force and police officers, they are or should be well aware of those statutes which prevent violation of civil rights, unnecessary use of force, excessive use of force, assault, battery, false imprisonment, false arrest, and the other claims made by Plaintiff herein. Rather, the Defendants appear to be attempting to preclude Plaintiff in order to prevent Plaintiff from asserting valid claims against them. This type of gamesmanship is sanctioned by neither case law nor CPLR 4511."

In a negligence action, a request in a demand for a bill of particulars that the plaintiff specify the statute or statutes that the complaint claims the defendant violated is proper. See Liga v. Long Island Railroad, 129 A.D.2d 566, 514 N.Y.S.2d 61 (2d Dept. 1987). Furthermore, it has been recognized that since courts are required to take judicial notice, without request, of the

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public statutes of every state, particularization of the statutes of New York and of sister states may not be required. It has also been held that the plaintiff may not defer providing particulars as to violations of statutes or ordinances by requesting that the trial court take judicial notice of any; applicable statutes. Although the court is required to take judicial notice of laws, requiring a plaintiff to set forth those statutes or regulations allegedly violated serves the additional useful purpose of giving the court early notice of those laws of which judicial notice should be taken. See CPLR § 4511 (a); Kwang Sik Kim v. A&K Plastic Products, Inc., 133 A.D.2d 219, 519 N.Y.S.2d 24 (2d Dept. 1987).

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