Opinion
156724/2016
12-14-2020
Christopher CABRAL, Jaime Cabral, Plaintiff, v. The ROCKEFELLER UNIVERSITY, Turner Construction Company, Defendant. The Rockefeller University, Turner Construction Company, Plaintiff, The Prince Manufacturing Company, Defendant.
Plaintiffs: Sacks and Sacks, LLP, 150 Broadway, 4th Floor, New York, NY 10038, By: Andrew R. Diamond, Esq. Defendants/Third-Party Plaintiffs: Cozen O'Connor, 45 Broadway, New York, NY 10006, By: Eric J. Berger, Esq. Third-Party Defendant: Delany Law, 36 Euclid Street, Woodbury, NJ 08096, By: John Joseph Delany, Esq.
Plaintiffs: Sacks and Sacks, LLP, 150 Broadway, 4th Floor, New York, NY 10038, By: Andrew R. Diamond, Esq.
Defendants/Third-Party Plaintiffs: Cozen O'Connor, 45 Broadway, New York, NY 10006, By: Eric J. Berger, Esq.
Third-Party Defendant: Delany Law, 36 Euclid Street, Woodbury, NJ 08096, By: John Joseph Delany, Esq.
Robert R. Reed, J.
The following e-filed documents, listed by NYSCEF document number (Motion 005) 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119 were read on this motion to VACATE/STRIKE - NOTE OF ISSUE/JURY DEMAND/FROM TRIAL CALENDAR.
Upon the foregoing documents, it is ordered that this motion to vacate the note of issue and certificate of readiness, and to extend the time to file dispositive motions, is granted.
Defendant/third-party plaintiffs The Rockefeller University (Rockefeller) and Turner Construction Company (Turner) argue that there are material facts in the certificate of readiness that are incorrect, as discovery proceedings are not complete. Plaintiffs oppose. Though plaintiffs do not object to the deposition of non-party witness Gregory Vidgop, they object to the striking of the note of issue, arguing that the note of issue was filed as mandated by a February 6, 2020 status conference order. Third-party defendant The Prince Manufacturing Company (Prince) cross-moves, seeking (1) to vacate the note of issue and certificate of readiness, (2) to extend the time for Prince to file its dispositive motion, (3) to compel Turner to comply with prior compliance conference orders and to provide missing discovery, (4) to compel Turner to provide the subject piston/clevis for examination, (5) to schedule a deadline for Prince to produce its expert liability reports, (6) to reschedule the deposition of non-party witness Gregory Vidgop, and (7) to compel Steve Adams (a Turner employee) to attend a deposition. Turner opposes Prince's cross-motion, arguing that that the parties did not have a meeting of the minds regarding the testing data to be exchanged, and that Prince failed to formally request the remaining discovery it seeks.
A court may vacate a note of issue where it appears that a material fact set forth therein, i.e., the representation that discovery is complete, is incorrect (see 22 NYCRR 202.21(e) ; Rivers v. Bimbaum , 102 AD3d 26 [2nd Dept 2012] ; Gomes v. Valentine Realty LLC , 32 AD3d 699 [1st Dept 2006] ; Herbert v. Sivaco Wire Corp. , 1 AD3d 144 [1st Dept 2003] ). Further, CPLR 3101 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 words ‘material and necessary’ as used in CPLR 3101(a) are ‘to be interpreted liberally to require disclosure ... of any facts bearing on the controversy’ ( Allen v. Crowell-Collier Pub. Co. , 21 NY2d 403, 406 )" (Matter of Steam Pipe Explosion at 41st Street and Lexington Avenue , 127 AD3d 554, 555 ).
Defendant/third-party plaintiffs Rockefeller and Turner assert in their moving papers that the note of issue and certificate of readiness should be vacated because there is an outstanding deposition of non-party witness Gregory Vidgop. Rockefeller and Turner attach as an exhibit to their moving papers an email exchange with plaintiffs acknowledging that there is an outstanding deposition and agreeing to vacate the note of issue. Plaintiffs in their opposition do not refute that a deposition remains outstanding and agrees to move forward with the deposition. Nevertheless, plaintiffs argue that this action should not be stricken from the trial calendar, since in filing the note of issue they were simply following the court's directives. This argument fails. Plaintiff's certified that all discovery was complete, knowing full well that there remained outstanding discovery. The status conference order dated February 6, 2020 anticipated that discovery would be complete before the note of issue was filed. Parties are not free to pick and choose which portions of a court's discovery order they will abide and which they will ignore. Plaintiffs offer no explanation for why they did not seek an extension of the time to file the note of issue, but, instead, chose to ignore the parties' remaining unmet discovery obligations. As it is evident that this matter is not ready for trial, vacating the note of issue is appropriate.
CROSS-MOTION
Third-party defendant Prince, in its cross-motion, also asserts that there are numerous discovery items outstanding, including: (1) the deposition of Steve Adams, a safety manager employed by Defendant/third-party plaintiff Turner, (2) an inspection of a piston/clevis, (3) test results and documents from a metallurgical testing, and (4) the production of expert liability reports.
Turner opposes Prince's cross-motion with respect to the request for a deposition of Turner employee Adams, arguing (a) that Prince failed to serve a proper demand to depose Adams, and (b) that Turner should not be compelled to produce a second witness because its designated witness had sufficient knowledge. A corporation has the right to designate the employee who will be deposed for its deposition (see Besen v. C.P.L. Yacht Sales Inc., 34 AD2d 789 ). Following a designation, a party seeking additional depositions of a corporation must demonstrate: "(1) that representatives already deposed had insufficient knowledge, or were otherwise inadequate, and (2) there is substantial likelihood persons sought for depositions possess information which is material and necessary to the prosecution of the case" (see Zollner v. City of New York , 204 AD2d 626, 627 ; see also Hayden v. City of New York , 6 AD3d 262.) Prince has failed to demonstrate the nature of the inadequacies of the witness Turner produced, and, therefore, has failed to meet its burden. Prince fails to assert in its cross-motion that the witness already deposed on behalf of Turner had insufficient knowledge and also fails to identify the specific information that Adams possesses that is material and necessary to this action. Prince's mere assertion that Adams possesses oversight and had direct communications regarding the work being performed at the time of the incident -- without more -- is a bare conclusion (notably unsupported by deposition testimony from other witnesses or an affidavit of a person with knowledge of the facts).
Prince also requests in its cross-motion that Turner produce a piston/clevis for inspection. Turner oppose this request, arguing that Prince failed to make a formal CPLR 3120 demand to inspect the subject piston/clevis. "After commencement of an action, any party may serve on any other party a notice or on any other person a subpoena duces tecum: (1) to produce and permit the party seeking discovery, or someone acting on his or her behalf, to inspect, copy, test or photograph and designated documents or any things which are in the possession, custody or control of the party or person served" ( CPLR 3120.) The record is void of a demand for inspection by Prince directed at Turner -- or another party to the action -- regarding the subject piston/clevis to be produced for inspection. Additionally, the status conference orders between the parties fail to direct that the subject piston/clevis be produced by Turner for inspection.
Prince further argues in its cross-motion that Turner failed to produce metallurgical testing data, which includes images, documents and test results. Turner argues that Prince requested "raw data" that has already been provided, and states that the remaining photos and materials are other items generated during testing and, accordingly, Prince should make a formal demand for those items. Prince, however, provides as evidence in support of its cross-motion three status conference orders dated September 5, 2019, December 13, 2019 and February 6, 2020, all directing Turner to produce the remaining data from the metallurgical testing. Prince also provides a testing protocol between the parties (see NYSCEF Doc. No. 113.) The protocol produced by Prince states "all images, documents and test results obtained using lab equipment will be compiled and saved on a CD for later distribution." Turner's argument that Prince requested only "raw data" and therefore should made a formal demand for all other documents from the testing is without merit. As directed in the protocol, all images documents and test results were to be distributed to the parties. Additionally, Turner's argument that there was no meeting of the minds when its counsel signed the status conference orders directing them to turn over the testing data is also without merit -- as it is at odds with the written word on those status conference orders.
Lastly, Prince requests that it be allowed to produce its expert liability report no earlier than 45 days after Turner produces their expert liability reports. Turner fails to address this point in its opposition.
In light of the determinations above and the outstanding discovery that remains, the court will grant the parties request for an extension of time to file their summary judgment motions.
Accordingly, it is
ORDERED that the motion of defendant/third-party plaintiffs The Rockefeller University and Turner Construction Company to vacate the note of issue and certificate of readiness is granted, and that, therefore, the note of issue is hereby vacated and the case stricken from the trial calendar; and it is further
ORDERED that, within 30 days of entry of this order, plaintiff shall take such steps as necessary to secure the attendance of non-party witness Gregory Vidgop for a video deposition on a mutually agreeable date and time; and it is further
ORDERED that the portion of third-party defendant The Prince Manufacturing Company's cross-motion seeking to compel Turner Construction Company to produce employee Steve Adams for a deposition is denied without prejudice; and it is further
ORDERED that the portion of third-party defendant The Prince Manufacturing Company's cross-motion seeking to compel Turner Construction Company to produce the subject piston/clevis for examination is denied without prejudice; and it is further
ORDERED that, within 30 days of the date of entry of this order, third-part defendant The Prince Manufacturing Company may make a formal demand to inspect the subject piston/clevis; and it is further
ORDERED that the portion of third-party defendant The Prince Manufacturing Company's cross-motion seeking to compel Turner Construction Company to produce all discovery regarding metallurgical/hardness testing and the CD with all images, documents and test results is granted; and it is further
ORDERED that, within 30 days of entry of this order, Turner Construction Company shall produce all discovery regarding metallurgical/hardness testing and the CD with all images, documents and test results; and it is further
ORDERED that the parties shall exchange expert liability reports as provided by CPLR § 3101 (d), or as otherwise stipulated to in writing; and it is further
ORDERED that the full discovery in this matter shall be completed within 120 days from service of a copy of this order with notice of entry; and it is further
ORDERED that the parties are directed to file all dispositive motions within 60 days of the note of issue; and it is further
ORDERED that, within 20 days from entry of this order, movant shall serve a copy of this order with notice of entry on all parties and upon the Clerk of the Trial Support Office (60 Centre Street, Room 158M), who is hereby directed to strike the case from the trial calendar and make all required notations thereof in the records of the court; and it is further
ORDERED that upon completion of discovery as hereinabove directed, plaintiff shall cause the action to be placed upon the trial calendar by the filing of a new note of issue and certificate of readiness (for which a fee shall be imposed), to which shall be attached a copy of this order [the plaintiff shall move to reinstate the note of issue as provided in Uniform Rule 202.21 (f) ]; and it is further
ORDERED that such service upon the Clerk of the Trial Support Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh).
This constitutes the Decision and Order of the court.