GHODBANE v. 111 JOHN REALTY CORP (2021)

The following e-filed documents, listed by NYSCEF document number (Motion 007) 160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 178, 179, 180, 181 were read on this motion to COMPEL.

In this personal injury action, plaintiff Hassene Ghodbane moves, pursuant to CPLR 3124, to compel defendants 111 John Realty Corp. (111 John) and Braun Management Inc. (together, defendants) to furnish detailed responses to a Notice for Discovery and Inspection dated May 4, 2020 (the May 4 Notice).

Plaintiff alleges that on July 6, 2014, he fell while traversing a staircase leading from a 7-Eleven store, where he was an employee, to the basement in 111 John Street, New York, New York (the Building). He further alleges the staircase on which he fell had a “covering” that was not properly secured (NYSCEF Doc No. 161, Jeffrey Bromfeld [Bromfeld] affirmation, ¶ 17).

The lease agreement between 111 John, as landlord, and third-party defendant 7-Eleven, Inc. (7-Eleven), as tenant, in effect at the time of the accident, shows that 7-Eleven leased a portion of the ground floor and basement of the Building (the Premises) (NYSCEF Doc No. 175, Bromfeld affirmation, exhibit M at 1). Section 50 (b) of the lease provides that 7-Eleven shall grant 111 John “access ․ to the mechanical room located in the Premises ․ to perform certain functions in connection with the normal operation of the Building (id. at 28). Plaintiff submits that defendants maintained electrical equipment, water meters, pumps and lines and sewer lines in the basement, and that defendants retained possession of the areas holding that equipment (NYSCEF Doc No. 161, ¶ 18). He submits several undated photographs depicting water on the floor of the basement (NYSCEF Doc No. 176, Bromfeld affirmation, exhibit N).

The 15 items sought in the May 4 Notice pertain to records of installation, inspection, maintenance and repair related to the electrical services, water lines, pumps and submeters and sewer lines located in the basement (NYSCEF Doc No. 172, Bromfeld affirmation, exhibit J at 1-2). Plaintiff submits that such records are germane to the issue of actual or constructive notice of the allegedly dangerous condition. In a response dated July 7, 2020, defendants objected to each demand as “overly broad, unduly burdensome, vague, immaterial and not reasonably calculated to lead to the discovery of admissible evidence” (NYSCEF Doc No. 173, Bromfeld affirmation, exhibit K at 1-3). Plaintiff now seeks to compel defendants to furnish more detailed responses.

In response, defendants maintain that the records plaintiff seeks do not bear on any issues in this action. After executing the lease, 7-Eleven engaged defendant Gemstar Construction Corp. (Gemstar) to renovate the Premises (NYSCEF Doc No. 179, Laura A. Endrizzi [Endrizzi] affirmation, exhibit A at 1). Undated progress photographs taken by Gemstar show that the metal covering on the staircase was installed at some point during construction (NYSCEF Doc No. 180, Endrizzi affirmation, exhibit B at 1). Defendants argue that plaintiff's requests are overly broad and amount to nothing more than a fishing expedition.

CPLR 3101 calls for the full disclosure of all evidence material and necessary in the prosecution or defense of an action (see Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). As such, “[l]iberal discovery is favored and pretrial disclosure extends not only to proof that is admissible but also to matters that may lead to the disclosure of admissible proof” (Twenty Four Hour Fuel Oil Corp. v Hunter Ambulance, 226 AD2d 175, 175-176 [1st Dept 1996]). That said, discovery may not be used as a “fishing expedition” (New York Community Bank v Parade Place, LLC, 96 AD3d 542, 543 [1st Dept 2012], quoting Orix Credit Alliance v Hable Co., 256 ADd 114, 116 [1st Dept 1998]). “The test of whether matter should be disclosed is ‘one of usefulness and reason’ ” (City of New York v Maul, 118 AD3d 401, 402 [1st Dept 2014], quoting Allen, 21 NY2d at 406).

CPLR 3124 provides that “[i]f a person fails to respond to or comply with any request, notice, interrogatory, demand, question or order under this article the party seeking disclosure may move to compel compliance or a response.” It is within the court's discretion to grant a motion brought under CPLR 3124 (Valencia v City of New York, 188 AD3d 549, 550 [1st Dept 2020]), after weighing “the need for discovery against any special burden borne by the opposing party” (Kavanagh v Ogden Allied Maint. Corp., 92 NY2d 952, 954 [1998] [internal quotation marks and citation omitted]).

This court agrees with plaintiff that the May 4 Notice seeks relevant information. While defendants argue that they were not involved in the construction work, plaintiff has demonstrated that the records sought would likely document the number of times defendants' agents or employees visited the mechanical room, and thus may be germane to issues of notice of a dangerous condition with respect to the staircase.

At the same time, the May 4 Notice, as drafted, is overly broad. In particular, it does not contain any time limit on the records to be produced. For example, plaintiff seeks “all records” of installations, maintenance, repairs and inspections of the equipment in the basement—without regard to whether the recorded activities occurred before or after Gemstar installed the metal covering at issue in this case. Nor does the record on this motion provide this court with a straightforward way to limit the temporal scope of the May 4 Notice. In these circumstances, “the appropriate remedy is to vacate the entire demand rather than to prune it” (Bennett v State Farm Fire & Cas. Co., 189 AD3d 749, 750 [2d Dept 2020] [citation omitted]).

Plaintiff is not without recourse as he may serve a revised demand setting forth a specific time frame for a search of defendants' records dated after Gemstar installed the staircase covering, if he be so advised.

Accordingly, it is

ORDERED that plaintiff's motion to compel under CPLR 3124 is granted only to the following extent: plaintiff may within 30 days of service of notice of entry serve a revised version of the May 4 Notice that seeks records from defendants limited to a reasonable time period beginning after Gemstar installed the staircase covering; and defendants shall respond to any such revised discovery request within 45 days; and it is further

ORDERED that plaintiff shall serve notice of entry on all parties; and it is further

ORDERED that the telephonic status conference scheduled for March 12, 2021, is adjourned until April 30, 2021; and it is further

ORDERED that the deadline for plaintiff to file his note of issue is extended until May 7, 2021.

Gerald Lebovits, J.