Opinion
01 Civ. 1270 (SWK)
September 3, 2003
OPINION AND ORDER
Defendants Bolla Taxi, Inc., and Youssef Abdou move for reconsideration of the Court's opinion and order dated September 9, 2002, denying summary judgment. In the September 9, 2002 Order, the Court found (1) there was an issue of material fact regarding who ran a red light at the intersection and (2) even if defendant Abdou had a green light at the intersection, there was still an issue of fact as to whether defendants Bolla and Abdou were also liable under the doctrine of comparative negligence. Plaintiff Molly Beattie cross-moves to strike the pleadings of defendants Dorval and Mertulien. For the reasons set forth below, the motion for reconsideration is denied. Beattie's cross-motion for sanctions is granted to the extent that Dorval and Mertulien are ordered to appear for depositions within 30 days of the date of this Order.
This diversity action arises from injuries allegedly caused by an October 7, 2000 automobile collision at an intersection in New York, New York. Plaintiff Molly Beattie was a passenger in the backseat of a medallion taxi sedan operated by defendant Abdou and registered to Bolla Taxi, Inc., which collided with a second medallion taxi sedan operated by Dorval and registered to Mertulien.
I. MOTION FOR RECONSIDERATION
"A motion for reconsideration should be granted only where the moving party demonstrates that the Court has overlooked factual matters or controlling decisions that were presented to it on the underlying motion." Adiel v. The Pharmacy Fund. Inc., No. 00 Civ. 3273, 2000 WL 1634381, *1 (S.D.N.Y. Oct. 30, 2000). This standard is narrowly construed against the moving party to "dissuade repetitive arguments on issues that have already been considered by the court." Caleb Co. v. E.I. Dupont De Nemours Co., 624 F. Supp. 747, 748 (S.D.N.Y. 1985). Furthermore, the moving party may not "advance new facts, issues or arguments not previously presented to the Court." Morse/Diesel, Inc. v. Fidelity Deposit Co. of Md., 768 F. Supp. 115, 116 (S.D.N.Y. 1991). The decision to grant or deny the motion is within the sound discretion of the Court. See Devlin v. Transp. Communications Int'l Union, 175 F.3d 121, 132 (2d Cir. 1999).
Under New York Law, the fact that a motorist approaching an intersection has the signal in his favor generally absolves the motorist from any charge of negligence in connection with a collision with another vehicle proceeding at right angles across the intersection. See Costalas v. New York, 143 A.D.2d 573 (N.Y.App.Div. 1988); see also Kelsey v. Degan, 266 A.D.2d 843 (N.Y.App.Div. 1999) ("[A]n operator who has the right of way is entitled to anticipate that other vehicles will obey the traffic laws that require them to yield."). However, pursuant to the doctrine of comparative negligence, a driver who proceeds in the face of a green light may be found partially responsible for the ensuing accident if he does not use reasonable care in approaching the intersection. See Siegal v. Sweeney, 266 A.D.2d 200, 202 N.Y. App. Div. 199);LaForge v. All Am. Car Rental, Inc., 155 A.D.2d 873 (N.Y.App.Div. 1989) (although undisputed that plaintiff drove through red light, a question of fact existed as to whether defendant could have avoided or otherwise minimized the accident).
Defendants Bolla and Abdou move for reconsideration on the grounds that defendant Abdou's deposition testimony did not raise an issue of negligence. In the September 9, 2002 Order, the Court noted that defendants Mertulien and Dorval, in their opposition to the motion for summary judgment, assert that even if defendant Abdou had a green light at the intersection, defendants Bolla and Abdou could still be found negligent. During his deposition, defendant Abdou testified that he did not see the vehicle operated by Dorval before the collision. Defendants Bolla and Abdou argue that "unless evidence were presented that Mertulien was all ready [sic] in the intersection and should have been observed and avoided by Abdou, Mr. Abdou's failure to see him does not raise an issue of negligence." Reply Certification of Marjorie E. Bornes, Esq. at ¶ 5. Defendants Bolla and Abdou, however, fail to cite any New York law that supports such an argument. They have therefore failed to establish that the Court overlooked any controlling decisions or factual matters and the motion for reconsideration is hereby denied.
Defendants Bolla and Abdou also assert that because defendants Dorval and Mertulien failed to appear for depositions, they should be precluded from offering evidence at trial. The Court will consider such a remedy only if Bolla and Abdou properly present such a motion.
II. MOTION TO STRIKE
Plaintiff moves to strike the answer of defendants Mertulien and Dorval because they failed to appear for their depositions. When a party fails to appear for a deposition, Rule 37(d) of the Federal Rules of Civil Procedure allows for certain remedies, including striking the pleadings of the culpable party. See Fed.R.Civ.P. 37(d). In determining what sanction to impose, the Court is mindful that a "sanction so drastic as striking an answer or entering a default judgment is not ordinarily imposed unless the [party's] disobedience has been willful, or in bad faith, or otherwise culpable. . . ." Luft v. Crown Publishers, Inc., 906 F.2d 862, 865 (2d Cir. 1990); see also Nat'l Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643 (1976) ("the sanctions of striking pleadings and dismissal are the most extreme sanctions available"); Wahhab v. City of New York, 02 Civ. 851, 2003 WL 21910865, *2 (S.D.N.Y. Aug. 11, 2003) (striking an answer is an extreme sanction).
Mertulien and Dorval have failed to appear for their deposition on at least three separate occasions. Such willful disregard for the rules of civil procedure will not be tolerated by this Court. Defendants Mertulien and Dorval are hereby ordered to appear for depositions within 30 days of the date of this Order. Failure to appear will result in sanctions, including striking their responsive pleadings. Additionally, Mertulien and Dorval are hereby ordered to pay the reasonable expenses and attorney's fees incurred by Plaintiff on this motion. See Fed.R.Civ.P. 37(d).
However, Plaintiff recently advised the Court that defendant Dorval was deposed in another action currently pending in New York State Supreme Court based on the collision at issue in this action. See letter from Glenn A. Herman, Esq., dated May 1, 2003.
The parties are hereby ordered to appear for a pre-trial conference on September 24, 2003, at 10:30 a.m., Room 906, 40 Centre Street, New York, New York.
SO ORDERED.