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Lea v. New York City Transit Authority

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 9, 2008

CHARLENE LEA, PLAINTIFF-RESPONDENT,
v.
NEW YORK CITY TRANSIT AUTHORITY, DEFENDANT-APPELLANT.

Order, Supreme Court, New York County (Donna M. Mills, J.), entered November 2, 2007, which, in an action for personal injuries sustained in a slip and fall on a staircase maintained by defendant New York City Transit Authority, inter alia, granted plaintiff's motion to strike defendant's answer unless defendant "complie[d] with the outstanding discovery demands" within 30 days, unanimously modified, on the facts, to grant the motion to strike unless defendant produces (1) its station supervisor's log, or an affidavit from someone with knowledge that such log could not be found after a diligent search, and (2) its station supervisor for deposition, both within 60 days after issuance of this order, and otherwise affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Gonzalez, Nardelli, Moskowitz, Renwick, JJ.

103372/06

On appeal, defendant does not challenge the demands for its station supervisor's log and deposition. Concerning the demands that do remain in issue on appeal, they are all are palpably improper (see Haller v North Riverside Partners, 189 AD2d 615, 616 [1993], citing Alaten Co. v Solil Mgt. Corp., 181 AD2d 466 [1992]; cf. Sonsini v Memorial Hosp. for Cancer & Diseases, 262 AD2d 185, 186-187 [1999]), and thus production thereof should not be compelled despite defendant's failure to timely object thereto under CPLR 3122 (see Haller; Perez v Board of Educ. of City of New York, 271 AD2d 251 [2000]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081209

© 1992-2008 VersusLaw Inc.



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