- October 24, 2017
Newman, PLLC, New York, NY (Jon E. Newman of counsel), for
defendants third-party plaintiffs-appellants.
Robinson & Yablon, P.C., New York, NY (Jason Levine of
counsel), for plaintiff-respondent.
& Co., P.C., Oyster Bay, NY (MelissaD. Patzelt-Russo of
counsel), forthird-party defendant-respondent.
C. BALKIN, J.P. LEONARD B. AUSTIN SANDRA L. SGROI VALERIE
BRATHWAITE NELSON, JJ.
DECISION & ORDER
action to recover damages for personal injuries, the
defendants third-party plaintiffs appeal, as limited by their
brief, from so much of an order of the Supreme Court, Kings
County (Bayne, J.), dated February 2, 2016, as granted the
plaintiffs motion to dismiss the third-party complaint,
denied their cross motion for leave to renew their opposition
to the plaintiffs motion, inter alia, to compel discovery,
which was granted in an order of the same court dated April
22, 2015, and compelled them to produce that discovery as
directed in the order dated April 22, 2015.
that the order dated February 2, 2016, is affirmed insofar as
appealed from, with one bill of costs.
plaintiff allegedly was injured when an interior stairway on
which he was standing partially collapsed. In February 2011,
the plaintiff commenced this negligence action against the
defendants to recover damages for his injuries, alleging that
the defendants owned, operated, maintained, managed, and
controlled the stairway. Throughout the discovery phase of
the action, the Supreme Court issued several orders
compelling the defendants to produce certain evidence
identifying the entity responsible for the control and
maintenance of the stairway up to and including the time of
the accident. In the most recent of those orders, dated April
22, 2015, the court directed the defendants to produce the
identity of the entity that repaired the stairway after the
plaintiffs accident and provide documentation of payment to
that entity within 45 days. The defendants did not produce
the information, and instead, in May 2015, commenced a
third-party action against the third-party defendant, the
defendants' cleaning contractor. The plaintiff thereafter
moved to dismiss the third-party complaint, and the
defendants cross-moved for leave to renew their opposition to
the plaintiffs motion, inter alia, to compel discovery of the
post-accident repair records. The court, inter alia, granted
the plaintiffs motion to dismiss the third-party complaint,
denied the defendants' cross motion for leave to renew,
and directed the defendants to produce the discovery set
forth in its order dated April 22, 2015. The defendants
1010 provides a safety valve for cases in which the
third-party claim 'will unduly delay the determination of
the main action or prejudice the substantial rights of any
party'" (Annanquartey v Passeser, 260
A.D.2d 517, 517, quoting CPLR 1010 [internal quotation marks
omitted]; see Gomez v City of New York, 78 A.D.3d
482, 483-484; Cipollina v Kent, 52 A.D.2d 632, 632).
Where the record indicates that a third-party plaintiff
knowingly and deliberately delayed in commencing the
third-party action, the Supreme Court acts within its
discretion to dismiss the third-party complaint (see
Skolnick v Max Connor, LLC, 89 A.D.3d 443, 444;
Grant v Wainer, 179 A.D.2d 364, 365; cf. Range v
Trustees of Columbia Univ. in the City of N.Y., 150
A.D.3d 515, 516). Contrary to the defendants'
contentions, the court correctly granted the plaintiffs
motion to dismiss the third-party complaint because the
defendants deliberately and intentionally delayed commencing
the third-party action for more than four years.
3101(a) requires full disclosure of all evidence material and
necessary in the prosecution or defense of an action"
(Del Vecchio v Danielle Assoc., LLC, 94 A.D.3d 941,
942; see Giordano v New Rochelle Mun. Hous. Auth.,
84 A.D.3d 729, 730-731). "'Evidence of subsequent
repairs and remedial measures is not discoverable or
admissible in a negligence case unless there is an issue of
maintenance or control'" (Del Vecchio v Danielle
Assoc., LLC, 94 A.D.3d at 942, quoting Clelandv
60-02 Woodside Corp., 221 A.D.2d 307, 308; see
DeRoche v Methodist Hosp. of Brooklyn, 249 A.D.2d 438,
439). Contrary to the defendants' contentions, an issue
exists as to the identity of the entity responsible for the
structural maintenance and control of the stairway.
Accordingly, the Supreme Court correctly directed the
defendants to produce discovery concerning the post-accident
parties' remaining contentions either are without merit
or need not be ...