In the Matter of Metro-North Train Accident of February 3, 2015, in the town of Mount Pleasant, New York. Jill Shiner Vandercar, etc., et al., respondents; Metro-North Commuter Railroad, et al., appellants. Index No. 64924/15
Submitted - September 27, 2019
Landman Corsi Ballaine & Ford P.C., New York, NY (William
G. Ballaine, Philip J. DiBerardino, and Daniel Friedman of
counsel), for appellants Metro-North Commuter Railroad,
Metropolitan Transportation Authority, Argent Ventures, LLC,
and Midtown TDR Ventures.
Duffy Alonso & Faley, New York, NY (Iryna S. Krauchanka,
Kenneth E. Pitcoff, and Andrea M. Alonso of counsel), for
appellant Town of Mount Pleasant.
Perecman Firm, PLLC, New York, NY (Steven B. Dorfman of
counsel), for respondent Nancy Liedtke and on behalf of the
plaintiffs' Steering Committee.
WILLIAM F. MASTRO, J.P. CHERYL E. CHAMBERS JOHN M. LEVENTHAL
LINDA CHRISTOPHER, JJ.
DECISION & ORDER
consolidated action, inter alia, to recover damages for
wrongful death and personal injuries, the defendants
Metro-North Commuter Railroad, Metropolitan Transportation
Authority, Argent Ventures, LLC, and Midtown TDR Ventures
appeal, and the defendant Town of Mount Pleasant separately
appeals, from an order of the Supreme Court, Westchester
County (Joan B. Lefkowitz, J.), dated February 26, 2018. The
order, insofar as appealed and separately appealed from,
granted the plaintiffs' motion to compel certain
discovery and/or for sanctions pursuant to CPLR 3126 to the
extent of directing the appellants to provide certain
supplemental responses to the plaintiffs' discovery
requests by no later than March 26, 2018, under threat of
that the order is affirmed insofar as appealed from, with one
bill of costs payable by the appellants appearing separately
and filing separate briefs.
action consolidates, for discovery and trial, 19 actions to
recover damages for wrongful death and personal injuries
arising from the February 3, 2015, collision between a
northbound Metro-North commuter train and a car in the
Commerce Street Highway Rail Grade crossing, in the Town of
Mount Pleasant. The plaintiffs include, among others,
passengers on the train, the estate of the individual who
operated the car, and the train's conductor. After the
train collided with the car, the third rail of the tracks
pierced through the car and the train, causing a fire. Five
passengers, as well as the operator of the car, died in the
accident, and numerous other passengers were injured. The
plaintiffs commenced actions against Metro-North Commuter
Railroad and Metropolitan Transportation Authority, as the
railroad operators, and Argent Ventures, LLC, and Midtown TDR
Ventures, as owners of the track and the underlying land
(hereinafter collectively the Metro-North defendants). The
plaintiffs also named the Town as a defendant. These appeals
concern disputes over discovery.
of discovery disputes and the nature and degree of the
penalty to be imposed pursuant to CPLR 3126 are matters
within the sound discretion of the motion court"
(Morales v Zherka, 140 A.D.3d 836, 836-837; see
Honghui Kuang v MetLife, 159 A.D.3d 878, 881). CPLR
3101(a) provides that "[t]here shall be full disclosure
of all matter material and necessary in the prosecution or
defense of an action, regardless of the burden of
proof." "The phrase 'material and
necessary' should be 'interpreted liberally to
require disclosure, upon request, of any facts bearing on the
controversy which will assist preparation for trial by
sharpening the issues and reducing delay and prolixity. The
test is one of usefulness and reason'" (Friel v
Papa, 56 A.D.3d 607, 608, quoting Allen v
Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406).
"The supervision of discovery, and the setting of
reasonable terms and conditions for disclosure, are within
the sound discretion of the Supreme Court. The Supreme
Court's discretion is broad because it is familiar with
the action before it, and its exercise should not be
disturbed on appeal unless it was improvidently
exercised" (Provident Life & Cas. Ins. Co. v
Brittenham, 284 A.D.2d 518; see Cabellero v City of
New York, 48 A.D.3d 727, 728).
given the nature of this action and the parties' past
discovery disputes, the Supreme Court providently exercised
its discretion in granting the plaintiffs' motion to
compel certain discovery and/or for sanctions pursuant to
CPLR 3126 to the extent of directing the Metro-North
defendants and the Town to provide certain supplemental
responses to the plaintiffs' subject discovery requests
by no later than March 26, 2018, under threat of preclusion.
to the appellants' contentions, the Supreme Court
properly included conditional preclusion language in its
order without making a finding of wilfulness. "A
conditional order of preclusion requires a party to provide
certain discovery by a date certain, or face the sanctions
specified in the order" (McIntosh v New York City
Partnership Dev. Fund Co., Inc., 165 A.D.3d 1251, 1252
[internal quotation marks omitted]; see Torres v Dayton
Hudson Corp., 171 A.D.3d 827, 828-829). "'With
this conditioning, the court relieves itself of the
unrewarding inquiry into whether a party's resistance was
wilful'" (Gibbs v St. Barnabas Hosp., 16
N.Y.3d 74, 82, quoting Siegel, N.Y. Prac § 367 at 608
[4th ed 2005]; see Felice v Metropolitan Diagnostic
Imaging Group, LLC, 170 A.D.3d 960, 963).
appellants' remaining contentions are without merit.
MASTRO, J.P., CHAMBERS, LEVENTHAL and ...