Beadell v. Eros Mgmt. Realty

1

2023 NY Slip Op 31854(U)

VIRGINIA BEADELL and KAYLA GREENINGER, Individually and as Co-Administratrix(es) of the Estate of NOAH C. BEADELL, Deceased, and KAYLA GREENINGER, Individually, Plaintiffs, v. EROS MANAGEMENT REALTY, LLC, WYNDHAM HOTEL MANAGEMENT, INC., CHRISTIAN ALDOY, TRYP MANAGEMENT, INC., HCS HOSPITALITY, INC., RONICA SHARMA, "JOHN DOE 1-10", and "JANE DOE 1-10," Defendants.

Index No. 159152/2017, Motion Seq. Nos. 004, 005, NYSCEF Doc. No. 192

Supreme Court, New York County

June 1, 2023

Unpublished Opinion

MOTION DATE 05/25/2023

DECISION + ORDER ON MOTIONS

JOHN J. KELLEY, J.S.C.

The following e-filed documents, listed by NYSCEF document number (Motion 004) 113, 114, 115, 116, 117, 118, 119, 120, 121 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 163 164, 165, 166, 167, 168, 183, 184, 185, 186 were read on this motion to/for VACATE NOTE OF ISSUE.

The following e-filed documents, listed by NYSCEF document number (Motion 005) 135, 136, 137, 138, 139, 140, 141, 142, 143 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155 156, 157, 158, 159, 160, 161, 162, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 187, 188, 189, 190 were read on this motion to/for SANCTIONS.

I. INTRODUCTION

This is an action to recover damages for wrongful death, based on the alleged negligence of the defendants Eros Management Realty, LLC, and Tryp Management, Inc. (together the defendants), in failing timely to contact the police despite promising to do so, after having been informed that the plaintiffs' decedent, who was one of their hotel guests, intended to commit suicide. The plaintiffs contended that the defendants' 25-minute delay in calling the police after promising to do so at 7:12 p.m. on May 26, 2017, and the defendants' inability to gain immediate access to the decedent's room when the police finally arrived, contributed to their decedent's commission of suicide when he jumped from his11th-floor hotel room window.

Under Motion Sequence 004, the defendants move pursuant to 22 NYCRR 202.21(e) to vacate the note of issue, pursuant to CPLR 3103 for a protective order quashing two so-ordered subpoenas issued by this court, and to preclude the plaintiffs from asserting a claim to recover for the decedent's conscious pain and suffering. The first of the two subject subpoenas, issued on April 11, 2023, directed the defendants to produce the names and contact information of two French hotel guests who witnessed the suicide and apparently observed the decedent alive for several minutes after he crashed through a skylight and landed in their hotel room. The second of the two subpoenas, issued on April 28, 2023, compelled the post-note of issue nonparty deposition of New York City Police Department (NYPD) Officer Daniel Dabren, who was one of the officers who responded to the scene of the decedent's suicide. The plaintiffs oppose that motion. The defendants' motion is denied.

Under Motion Sequence 005, the plaintiffs move pursuant to 22 NYCRR part 130 for the imposition of sanctions upon the defendants based on litigation misconduct during discovery, including the striking of their answer, for the award of treble damages against the defendants' attorneys pursuant to Judiciary Law § 487, and pursuant to 22 NYCRR 202.21(d) for permission to conduct a remote post-note of issue deposition of the French witnesses. In the May 19, 2023 order to show cause initiating that motion, the court granted permission to the plaintiffs to conduct that deposition in the courtroom by remote conference application at any convenient time between May 19, 2023 and the commencement of trial on June 15, 2023. The court also stayed the automatic suspension of that deposition that otherwise was imposed by virtue of the defendants' motion pursuant to CPLR 3103. At oral argument on May 25, 2023, a date for that deposition was scheduled. The remainder of the plaintiffs' motion is granted to the extent that the defendants are precluded from affirmatively adducing any eyewitness or expert testimony at trial in connection with the issue of whether the decedent consciously experienced pain and suffering after he landed, they are assessed a sanction in the sum of $25,000.00, payable to the Clerk of the Court, and they shall pay costs to the plaintiffs in the form of reasonable attorneys' fees for the time incurred by the plaintiffs' attorneys in litigating the two motions presently before the court, as well as the cost incurred by the plaintiffs in retaining a private investigator to locate the French witnesses. The plaintiffs' motion is otherwise denied.

II- FACTUAL BACKGROUND

The facts of the underlying dispute are set forth in detail in this court's July 12, 2022 order that, among other things, denied the defendants' motion for summary judgment dismissing the complaint as to them (SEQ 003). As relevant to the instant motions, in a 2017 proceeding for pre-action disclosure, the court (Tisch, J.) granted the petition, and directed Eros Management Realty, LLC, the owner of the hotel, to preserve and provide all discovery demanded in the petition (Matter of Beadell v City of New York, Index No. 156308/2017 [Sup Ct, N.Y. County, Aug. 7, 2017]), which included "reports, security reports and internal memorandums maintained by THE HOTEL" that related to the decedent's suicide, "all written reports and documents prepared by THE HOTEL'S general manager and hotel executives related to the subject incident," and "all investigative reports about the incident from THE HOTEL'S security department." The plaintiffs commenced the instant action on October 13, 2017. In a preliminary conference order dated August 16, 2018, the court (Wan, J.) directed all parties to exchange the names and addresses of all eyewitnesses and notice witnesses on or before September 17, 2018. In a notice for discovery and inspection dated May 26, 2020, the plaintiffs demanded that the defendants provide them with a

"[c]opy of all incident reports made to defendants' liability insurance company by Kelsie Garcia, Leslie Tapia, Maodo Sow, Raymond Minaya Marte, Yajaira Faciert, Monica Sharma, and the unidentified housekeeper who cleaned the room of Dr. Noah Beadell following his suicide on May 26th"

(emphasis added). In response to that demand, the defendants alleged that they

"are not in possession of any incident reports made to defendants' Liability insurance company by Kelsie Garcia, Leslie Tapia, Maodo Sow, Raymond Minaya Marte, Yajaira Faciert, Monica Sharma, and the unidentified housekeeper who cleaned the room of Noah Beadell following his suicide on May 26, 2017."

In their May 26, 2020 demand, the plaintiffs further requested the defendants to produce a

"[c]opy of all other reports, investigation notes, correspondence and memorandum from Monica Sharma or any other department head supervisors or hotel executives made to the defendants' insurance companies following the May 26th suicide of Dr. Noah Beadell in addition to the incident reports referenced in item #10 submitted to defendants' insurance company in the two weeks following the suicide of Dr. Noah Beadell on May 26th 2017, including documents, investigation notes made by Kelsie Garcia, Leslie Tapia, Maodo Sow, Raymond Minaya Marte, Yajaira Faciert and the unidentified housekeeper who cleaned the room of Dr. Noah Beadell following his suicide."

In response to that demand, the defendants asserted that "[d]efendants object to this demand as overly broad, unduly burdensome, irrelevant, vague, and palpably improper."

Crucially, the plaintiffs also demanded that the defendants provide them with "[t]he identities and addresses of the French tourists occupying the room where decedent was found by the NYPD following the jump to his death" and "[c]opies of all correspondence sent by the TRYP Hotel to these French tourists following the day of the suicide." Rather than providing a response to either of those demands, the defendants objected that the demands were "overly broad, unduly burdensome, irrelevant, vague, and palpably improper."

The defendants never provided the plaintiffs with the identities or addresses of the French eyewitnesses, and never provided the plaintiffs with any memoranda or correspondence between the defendants or their insurance adjustor and the French eyewitnesses.

At an April 11, 2023 settlement conference, this court ordered the defendants to provide the location of former Tryp Hotel employee, Kelsey Garcia, within 10 days and that, if that information were not provided, she would be precluded from testifying at trial. The hotel defendants complied with that order and advised that Garcia is residing at some unknown location in Europe and, as such, would not be produced fortrial. Over the defendants' objections that discovery had been completed and that the French witnesses who allegedly saw the decedent alive after he landed in their hotel room enjoyed some sort of vague right of privacy preventing the disclosure of their names and addresses, the court also so-ordered a subpoena duces tecum on that date, directing the defendants to provide the plaintiffs with the identities of, and contact information for, the French witnesses. In response, the defendants advised that court that they no longer had information concerning the French witnesses or any other guests from 2017. On April 28, 2023, the court so-ordered a judicial subpoena directing the nonparty deposition of PO Dabren. This court also set a firm trial date of June 15, 2023. Rather than comply with the subpoenas, the defendants instead moved, on May 8, 2023, to vacate the note of issue and quash the subpoenas that the court already had so-ordered.

After the April 11, 2023 conference, the plaintiffs, through the...