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Rivera v. City of New York

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 16, 2009

ESTHER RIVERA, PLAINTIFF,
v.
THE CITY OF NEW YORK, ET AL., DEFENDANTS,
NEW YORK CITY TRANSIT AUTHORITY, DEFENDANT-APPELLANT,
CAB ASSOCIATES, DEFENDANT-RESPONDENT.

Order, Supreme Court, New York County (Donna M. Mills, J.), entered December 21, 2007, which, to the extent appealed from as limited by the brief, granted defendant CAB Associates' motion to compel defendant New York City Transit Authority (NYCTA) to disclose documents and produce a witness for an examination before trial, unanimously 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.

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

101164/03

The motion court providently exercised its discretion in ruling that the test boring project, its related documents, and the testimony of the NYCTA's project manager for the test boring project was relevant to this action arising from plaintiff's trip and fall on the metal cap and plywood sheet which covered the boring hole (see e.g. Daniels v City of New York, 291 AD2d 260 [2002]).The documents and testimony are relevant to resolving questions as to what caused the accident and who installed the plywood and metal cap that plaintiff allegedly tripped and fell over on the project site. In this regard, the photographic evidence cited by the NYCTA does not conclusively establish its claim that its subcontractor, George Warren, Inc., was not responsible for the installation.

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

20090416

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