Opinion
Index No. 156627/2013
07-21-2016
JENNIFER SAAD, Plaintiff, v. HSBC BANK USA, and HSBC USA INC.,, Defendants. HSBC BANK USA, and HSBC USA INC., Third-Party Plaintiffs v. CEMUSA NY LLC, Third-Party Defendant. CEMUSA NY, LLC i/s/h/a CEMUSA NY LLC, Second Third-Party Plaintiff v. TRIUMPH CONSTRUCTION, Second Third-Party Defendant. CEMUSA NY, LLC i/s/h/a CEMUSA NY LLC, Third Third-Party Plaintiff v. DYNASERV INDUSTRIES, INC., PIPELINE CONSTRUCTION, LLC and SHELTER EXPRESS, CORP., Third Third-Party Defendants. CEMUSA NY, LLC i/s/h/a CEMUSA NY LLC, Fourth Third-Party Plaintiff v. JONES LANG LASALLE, INC., Fourth Third-Party Defendant.
Motion Sequence: 009 DECISION/ORDER
The branch of the motion by Cemusa NY LLC (Cemusa) to strike the Bill of Particulars from HSBC Bank USA and HSBC USA Inc. (HSBC) is denied and the branch of Cemusa's motion seeking an order requiring HSBC to produce its property manager for a deposition is denied without prejudice to refile.
This action arises out of alleged personal injuries suffered by plaintiff on April 18, 2013 when plaintiff allegedly tripped and fell on a sidewalk in front of an HSBC branch located at 481 Kings Highway, Brooklyn, New York.
Discussion
Cemusa claims that it needs the deposition of HSBC's property manager in order to ascertain HSBC's policies regarding the management of the sidewalk and that the only witness provided was a bank manager, who was unable to address these issues. Cemusa further argues that it sought an EBT from HSBC and that HSBC's attorney refused to provide an additional witness. Cemusa claims that the EBT of HSBC's property manager is critical to its defense and alleges that HSBC (or its agents) destroyed the portion of the sidewalk over which plaintiff tripped.
Cemusa also claims that HSBC failed to respond to Cemusa's Demand for a Bill of Particulars until February 11, 2016 despite repeated court orders requiring responses to all outstanding discovery. Cemusa further claims that the Bill of Particulars alleges new allegations and that it was not served upon Cemusa. Cemusa claims that HSBC is claiming new allegations at a time when discovery is nearly completed.
In opposition, HSBC claims that the Bill of Particulars does not contain new allegations. HSBC further claims that it has produced a witness for a deposition on three separate occasions and that Cemusa has not provided a reasonable explanation for why an additional witness is necessary. HSBC claims that the property management at this location was handled by Jones Lang Lasalle (its property management agent). HSBC also contends that Jones Lang was deposed (before it was brought into the instant action) and Jennifer Thompson (of Jones Lang) testified that she was the facility manger for this branch and that HSBC did not have its own maintenance personnel at this location.
Pursuant to this Court's order dated May 20, 2016, the third and fourth party actions were severed from the main action and HSBC was directed to obtain a new index number (and purchase and file an RJI) on or before June 30, 2016. At a conference on June 28, 2016, the Court extended HSBC's time to comply with the order dated May 20, 2016 to August 10, 2016. Therefore, Cemusa's claims about allegedly new allegations are immaterial because discovery is no longer "almost complete." Discovery has not begun in the severed action. Further, since the submission of this motion, Cemusa began a fourth third-party action against Jones Lang Lasalle. Now, discovery must be completed as to Jones Lang as well. Therefore, the Court denies the branch of the motion seeking to strike HSBC's Bill of Particulars.
Given that Jones Lang is now a party to the severed action, the second branch of Cemusa's motion is denied without prejudice to refile. Although, Jones Lang was deposed as a non-party, the parties in the severed action might seek additional discovery from Jones Lang, which could include an additional deposition.
Accordingly, it is hereby
ORDERED that the branch of the motion seeking to strike HSBC's Bill of Particulars is denied; and it is further
ORDERED that the branch of the motion seeking to compel the deposition of HSBC's property manager is denied without prejudice to refile.
This is the Decision and Order of the Court. Dated: July 21, 2016
New York, New York
/s/ _________
HON. ARLENE P. BLUTH, JSC