| Conciatori v Port Auth. of N.Y. & N.J. |
| 2007 NY Slip Op 09549 [46 AD3d 501] |
| December 4, 2007 |
| Appellate Division, Second Department |
| Dawn Conciatori et al., Appellants, v Port Authority ofNew York and New Jersey, Respondent. |
—[*1] Downing & Peck, P.C., New York, N.Y. (John M. Downing, Jr., of counsel), forrespondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Queens County (Price, J.), entered June 6, 2006, which granted thatbranch of the defendant's cross motion which was for summary judgment dismissing thecomplaint and denied, as academic, their motion pursuant to CPLR 3126 to strike the defendant'sanswer or, in the alternative, to preclude the defendant from presenting evidence at trial forfailure to timely comply with certain court-ordered discovery.
Ordered that the order is modified, on the law, (1) by deleting the provision thereof grantingthat branch of the defendant's cross motion which was for summary judgment dismissing thecomplaint and substituting therefor a provision denying that branch of the cross motion, and (2)by deleting the provision thereof denying, as academic, the plaintiffs' motion pursuant to CPLR3126 to strike the defendant's answer or, in the alternative, to preclude the defendant frompresenting evidence at trial for failure to timely comply with certain court-ordered discovery andsubstituting therefor a provision denying the plaintiffs' motion on the merits; as so modified, theorder is affirmed, without costs or disbursements.[*2]
On January 22, 2003 the plaintiff Dawn Conciatori(hereinafter Conciatori) was injured outside an airline terminal located at LaGuardia InternationalAirport (hereinafter the airport). Conciatori and her husband thereafter commenced the instantpersonal injury action against the defendant, alleging that Conciatori sustained her injuries whenshe was struck by a bus operated by the defendant.
The plaintiffs requested that the defendant produce various discovery material, includinginformation regarding the defendant's operation of buses between the airline terminals at theairport. Although various discovery was conducted between the parties, the defendant did notprovide the plaintiffs with documentation pertaining to busing operations at the airport, or anopportunity to depose a witness knowledgeable about the busing operations at the airport.
Accordingly, the plaintiffs moved pursuant to CPLR 3126 to strike the defendant's answer or,in the alternative, to preclude it from presenting evidence at trial due to its failure to comply withcourt-ordered discovery. The Port Authority cross-moved, inter alia, for summary judgmentdismissing the complaint on the ground that either Conciatori was not struck by a bus, or, if shewas struck by a bus, there was no evidence of negligence by the bus driver, or on the alternativeground that the defendant neither owned nor controlled the bus in question. The Supreme Courtgranted that branch of the defendant's cross motion which was for summary judgment dismissingthe complaint and denied the plaintiffs' motion as academic. The plaintiffs appeal.
The defendant sustained its initial burden of making a prima facie showing of entitlement tojudgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]) onboth of the grounds set forth in its cross motion. Hence, on the question of the cause ofConciatori's injuries, the defendant submitted evidence demonstrating that Conciatori fell whilerunning to avoid an oncoming bus and that her injuries were not due to negligence on the part ofthe bus driver. However, the plaintiffs submitted evidence in opposition indicating thatConciatori was struck by the bus itself, due to the negligence of its operator. A court may notweigh the credibility of witnesses on a motion for summary judgment, "unless it clearly appearsthat the issues are not genuine, but feigned" (Glick & Dolleck v Tri-Pac Export Corp., 22NY2d 439, 441 [1968]; see Ferrante v American Lung Assn., 90 NY2d 623, 631 [1997]).Accordingly, the plaintiffs raised triable issues of fact with regard to the cause of Conciatori'sinjuries, and summary judgment on that ground was inappropriate (see Winegrad v New YorkUniv. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d557 [1980]; Vigliotti v DeNicola, 304 AD2d 751, 752 [2003]; see also Sarwar vBlackwell, 285 AD2d 638 [2001]). Similarly, while the defendant submitted evidenceindicating that it did not own or control the bus that allegedly caused Conciatori's injuries (seeGTF Mktg. v Colonial Aluminum Sales, 66 NY2d 965 [1985]), the plaintiffs had noopportunity to depose a witness with knowledge regarding the defendant's control or supervisoryrole, if any, over the operation of the buses within the airline terminals located at the airport.Thus, evidence necessary for the plaintiffs to effectively oppose the defendant's cross motionremains exclusively in the defendant's possession (see Levy v Board of Educ. of City ofYonkers, 232 AD2d 377, 378 [1996]), and summary judgment on this ground should havebeen denied as premature (see CPLR 3212 [f]; Juseinoski v New York Hosp. Med. Ctr. of Queens, 29 AD3d 636,638 [2006]).
The Supreme Court should have denied on the merits the plaintiffs' motion pursuant to CPLR3126 to strike the defendant's answer or, in the alternative, to preclude the defendant frompresenting evidence at trial for failure to timely comply with certain court-ordered discovery. Acourt may, inter alia, strike the "pleadings or parts thereof" as a sanction against a party who"refuses [*3]to obey an order for disclosure or wilfully fails todisclose information which the court finds ought to have been disclosed [upon notice]" (CPLR3126 [3]). However, "striking [a pleading] is inappropriate absent a clear showing that the failureto comply with discovery demands is willful, contumacious, or in bad faith" (Espinal v Cityof New York, 264 AD2d 806 [1999] [internal quotation marks omitted]). Although thedefendant failed to produce for a deposition a witness with adequate knowledge of the operationof buses at the airport, the record does not reveal willful and contumacious disobediencewarranting the extreme relief requested by the plaintiffs (see Kuzmin v Visiting Nurse Serv. of N.Y., 22 AD3d 643, 644[2005]). Miller, J.P., Mastro, Lifson and Carni, JJ., concur.