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Andrade v. Geiger Construction Company, Inc.

Sup Ct, New York County

August 12, 2013

LEOCADIO ANDRADE, Plaintiff,
v.
GEIGER CONSTRUCTION COMPANY, INC., PERIMTER BRIDGE & SCAFFOLD CO., INC., 498 SEVENTH LLC, NEW YORK CITY TRANSIT AUTHORITY and MANHATTAN AND BRONX SURFACE TRANSIT OPERATING AUTHORITY, Defendants. Index No. 108945/2011

Unpublished Opinion

DECISION AND ORDER

Michael D. Stallman, J.:

Defendant/third-party defendant Geiger Construction, Inc. moves to strike the complaint due to plaintiffs failure to comply with discovery, or in the alternative, to compel plaintiff to comply with prior so-ordered stipulations from discovery conferences and with five notices for discovery and inspection. Geiger Construction Co., Inc. also seeks an order compelling defendant/third-party plaintiff, 498 Seventh LLC, to supply all outstanding discovery. Plaintiff opposes the motion.

BACKGROUND

In this action, plaintiff alleges that, on May 7, 2010, he was injured while he was erecting sidewalk scaffolding at 498 Seventh Avenue in Manhattan. According to the complaint, a bus came into contact with the plaintiff. The complaint asserts causes of action alleging violations of Labor Law §§ 200, 240 and 241, and common-law negligence.

On June 27, 2012, defendant 498 Seventh LLC commenced a third-party action against Geiger Construction Co., Inc. (Geiger Construction). (Forman Affirm., Ex B.) After Geiger Construction answered the third-party complaint, plaintiff apparently filed a supplemental summons and amended verified complaint on July 18, 2012, naming Geiger Construction as a direct defendant. (Forman Affirm., Ex D.) Geiger Construction served upon plaintiff a notice for discovery inspection dated September 24, 2012, which demanded, among other things, "Copies of all prior pleadings and Bills of Particulars served in this action" and all discovery demands and responses that were previously served. (Forman Affirm., Ex E.)

At a discovery conference on December 13, 2012, the parties stipulated, among other things, that "II AND Δ 498 TO PROVIDE GEIGER WITH COPIES OF PREVIOUSLY EXCHANGED DISCOVERY W/I 3 0 DAYS." (Forman Affirm, Ex F.) The December 13, 2012 stipulation also stated, in pertinent part:

"(3) II to provide TA with Affidavit or some form of written proof indicating that II uses both the last name of 'Andrade' and 'Andrade-Rosas' within 30 days, (with copy to all As)
(4) II to provide TA with copies of medical reports current authorizations to obtain II, s medical records/reports w/in 30 days (copies MD2 to all As)
(5)II to provide copies of any accident reports or line of duty injury reports, if any, within 30 days.
(6) to provide authorizations for workers comp file/workers comp board, employment W-2's for 2006 to date, within 30 days, if not already provided."

(Id.)

During this time, Fischetti & Pesce LLP was Geiger Construction's counsel of record. Newman Myers Kreins Gross Harris, P.C. was later substituted as Geiger Construction's counsel, and a notice of substitution of counsel was filed with the court on March 22, 2012.

Geiger Construction's new counsel served upon plaintiff three different notices for discovery and inspection each dated March 25, 2013 (Forman Affirm., Exs G, H, I), and a notice for discovery and inspection dated April 10, 2013. (Forman Affirm., Ex J.)

At the next discovery conference on April 11, 2013, the parties again agreed, among other things, "As per prior order, [plaintiff] AND 498 Seventh are to provide Δ Geiger with copies of all previously exchanged pleadings, discovery demands & discovery responses, etc. as per Geiger's demands within 14 days, to the extent not already provided." (Forman Affirm., Ex K.) The stipulation also provided,

"[plaintiff] is to provide responses to Δ Geiger's demands for discovery w/in 30 days, including (1) Further ND&I re: prior injury dated 3/25/13, (2)Demand for Medicare/Medicaid and Disability Info, dated 3/25/13, (3)ND&I on Special Damages dated 3/25/13 and (4) ND&I and Further Demand for Authorizations dated 4/10/13, to the extent not already provided."

(Forman Affirm., Ex K.)

According to Geiger Construction, plaintiff neither provided counsel with copies of any previously exchanged pleadings, discovery demands, discovery responses nor responded to the notices for discovery and inspection. (Forman Affirm. ΒΆ 13.) By letter dated April 25, 2013, Geiger ...


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