Peralta v. New York City Housing Authority

169 A.D.3d 1071

95 N.Y.S.3d 119

Rufino PERALTA, et al., Respondents,

v.NEW YORK CITY HOUSING AUTHORITY, Appellant.

2017–08544

Index No. 11912/14

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

Submitted—October 12, 2018

February 27, 2019

Herzfeld & Rubin, P.C., New York, N.Y. (Linda M. Brown of counsel), for appellant.

Gary A. Zucker & Associates, P.C., Brooklyn, N.Y. (Daniel B. Rubin of counsel), for respondents.

ALAN D. SCHEINKMAN, P.J., WILLIAM F. MASTRO, JOSEPH J. MALTESE, BETSY BARROS, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Lawrence Knipel, J.), dated July 5, 2017. The order, insofar as appealed from, (1) denied that branch of the defendant's motion which was pursuant to CPLR 3104(d) to vacate so much of an order of the same court (Martin Schneier, J.H.O), dated March 23, 2017, as granted that branch of the plaintiffs' prior motion which was to compel the defendant to produce certain discovery requested in items 1 and 2 of the plaintiffs' notice of discovery and inspection, and (2) granted the plaintiffs' cross motion pursuant to CPLR 3126 to strike the defendant's answer to the extent of conditionally striking the defendant's answer unless it provided the plaintiffs with the discovery requested in items 1 and 2 of the plaintiffs' notice of discovery and inspection by August 1, 2017.

ORDERED that the order dated July 5, 2017, is modified, on the law and in the exercise of discretion, (1) by deleting the provision thereof denying that branch of the defendant's motion which was to vacate so much of the order dated March 23, 2017, as granted that branch of the plaintiffs' prior motion which was to compel the defendant to produce certain discovery requested in item 1 of the plaintiffs' notice of discovery and inspection, and substituting therefor a provision granting that branch of the defendant's motion, (2) by deleting the provision thereof which conditioned the striking of the defendant's answer upon it providing the plaintiffs with the discovery requested in item 1 of the plaintiff's notice of discovery and inspection, and (3) by deleting the provision thereof setting August 1, 2017, as the deadline for the defendant to comply with the remaining portion of the March 23, 2017, order which relates to the discovery requested in item 2; as so modified, the order dated July 5, 2017, is affirmed insofar as appealed from, without costs or disbursements; and it is further,

ORDERED that the defendant's time to comply with the order dated March 23, 2017, with regard to item 2 of the plaintiffs' notice of discovery and inspection is extended to 30 days from the date of service upon it of a copy of this decision and order with notice of entry thereon.

In August 2014, the plaintiffs commenced this action against the defendant to recover damages for personal injuries arising out of a fire that occurred in unit 4D at 75 Bush Street in Brooklyn (hereinafter the subject property). The subject property was owned by the defendant. In an order dated March 23, 2017, the Judicial Hearing Officer (hereinafter JHO) assigned to supervise discovery in the action, inter alia, granted that branch of a motion by the plaintiffs which was to compel the defendant to produce certain discovery requested in items 1 and 2 of the plaintiffs' notice of discovery and inspection by a specified date. The JHO determined that the defendant had failed to comply with a prior discovery order dated February 23, 2017, directing the defendant to provide the requested materials "or an affidavit by [an] individual with personal knowledge stating as to each item that it was prepared exclusively for litigation."

The defendant promptly moved pursuant to CPLR 3104(d) to vacate the order dated March 23, 2017. The plaintiffs opposed the defendant's motion and cross-moved to strike the defendant's answer for its failure to comply with that order. By order dated July 5, 2017, the Supreme Court, inter alia, denied that branch of the defendant's motion which was to vacate so much of the order dated March 23, 2017, as directed the defendant to produce the discovery requested in items 1 and 2 of the plaintiffs' notice of discovery and inspection, and granted the plaintiffs' cross motion pursuant to CPLR 3126 to strike the defendant's answer to the extent of conditionally striking the answer unless the defendant provided the plaintiffs with the discovery requested in items 1 and 2 of the plaintiffs' notice of discovery and inspection by August 1, 2017. The defendant appeals.

As a threshold matter, the plaintiffs no longer oppose the vacatur of so much of the order dated March 23, 2017, as directed the defendant to produce the discovery requested in item 1 of the plaintiffs' notice of discovery and inspection. Since the plaintiffs have abandoned their pursuit of item 1, we grant that branch of the defendant's motion which was to vacate so much of the order dated March 23, 2017, as directed the defendant to produce the information requested therein, and delete the provision which conditioned the striking of the defendant's answer upon the defendant providing the plaintiffs with the discovery requested in item 1.

The Supreme Court providently exercised its discretion in denying that branch of the defendant's motion which was to vacate so much of the order dated March 23, 2017, as directed the defendant to produce the discovery requested in item 2 of the plaintiffs' notice of discovery and inspection. Item 2 sought "any origin and cause reports, engineering reports, investigation notes, witness statements, investigation reports, and photographs of the apartment in the possession of the defendant or its investigators." In response to the plaintiffs' notice of discovery and inspection, the defendant submitted the affidavit of an attorney, in which the attorney merely stated that "[a]ll of the investigation notes, witness statements, investigation reports and photographs that were taken of the fire apartment were taken under [his] direction and control, were prepared in anticipation of litigation and consist of privileged, attorney work product." The defendant further submitted an affidavit of its property manager, who averred that "[t]he NYC Fire Department takes custody of the apartment when the fire occurs," that "[a]ny subsequent investigation work is performed at the direction of [the defendant's] attorneys," and that "[the defendant] did not perform any investigation regarding the fire that occurred ... that was separate from any investigation performed by [the defendant's] attorneys."

The general rule is that...