Opinion
01 Civ. 10137 (LAK)
September 30, 2002
ORDER
By letter dated September 25, 2002, defendants seek an order compelling plaintiff to produce three design drawings for property that included the parcel on which the plaintiff's Thunderbolt roller coaster was located. Plaintiff resists, contending that the request comes too late, that the documents it seeks are not relevant, and that allowing defendants this discovery would be inequitable.
Plaintiff here contends that the City violated its rights when it demolished its long unused roller coaster on the allegedly pretextual ground that it was unsafe. It seeks substantial damages. The City maintains that the demolition was within its rights and, in any case, that the roller coaster had little or no value and eventually would have been demolished in any event. The designs for the larger area including plaintiff's property at issue here pertain to that contention, as the City, according to plaintiff, asserts that if the City had not acted as it did, the project for which the three designs were created would have gone ahead and plaintiff's property would have been demolished anyway.
Defendants' first set of interrogatories and document request required that plaintiff provide the following among other documents:
"10. Provide a copy of all blueprints, architectural or engineering plans, drawings, diagrams, surveys, maps, photographs and videotape regarding the Thunderbolt and/or the property containing and/or surrounding the Thunderbolt.
* * *
"13. Provide a copy of all documents relating to any and all future or intended plans to repair, restore, demolish, rebuild or use the Thunderbolt by plaintiffs, including but not limited to any reports, estimates, evaluations, appraisals, contracts, agreements, or surveys regarding the Thunderbolt and/or the property containing and/or surrounding the Thunderbolt."
(Emphasis added)
In view of the italicized language, the design drawings here at issue plainly were called for by item 10, and perhaps by item 13, of the request. Plaintiff nevertheless did not produce them. Instead, they first came to light at plaintiff's deposition on September 4, 2002, just a few days before the discovery cut off. As soon as the transcript was prepared, defendants requested them but plaintiff has declined the request.
At this stage, the design drawings are sufficiently relevant to warrant their disclosure. The only real question concerns whether the request came too late. In view of the fact that plaintiff should have produced them in response to the quoted document request, which was served in April 2002, and that its failure to do so effectively concealed their existence until virtually the expiration of the discovery period, the fact that defendants' request was made a few days after the expiration date is of no moment.
Plaintiff's complaint of inequity is equally without merit. It appears to refer to the Court's September 18 and 19 orders ruling on other discovery demands. The September 18 order granted plaintiff's requests for production of certain photographs that had been requested in a timely fashion and that former Mayor Giuliani return to complete a deposition that he had walked out on (¶¶ 3-4) but denied its request for an order compelling compliance with extensive document requests first made on the penultimate day of the discovery period (¶¶ 2, 5). The September 19 order denied plaintiff's vague demand for documents first requested after the conclusion of the discovery period. The lack of comparability between the present situation — in which the belated nature of defendants' request for three specific documents was occasioned by plaintiff's failure to produce them earlier in response to a request that clearly called for them — and those dealt with previously is obvious.
Defendants' application is granted. Plaintiff shall produce the design drawings no later than October 7, 2002.
SO ORDERED.