KATZ v. Walter Gorman, et al., Defendants-Respondents.

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Supreme Court, Appellate Division, First Department, New York.

Rony KATZ, Plaintiff-Respondent, v. DREAM TRANS, INC., et al., Defendants-Appellants, Walter Gorman, et al., Defendants-Respondents.

Decided: October 28, 2004

NARDELLI, J.P., SAXE, ELLERIN, GONZALEZ, CATTERSON, JJ. Friedberg & Raven, LLP, New York (Andrew C. Kaye of counsel), for appellants. Sweetbaum & Sweetbaum, Lake Success (Marshall D. Sweetbaum of counsel), for Gorman respondents.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered November 7, 2003, which, in an action for personal injuries sustained when plaintiff was pinned between a bus owned and operated by defendants Dream Trans, Inc. and Esparza (the Dream defendants) and a car owned and operated by the Gorman defendants, granted the Gorman defendants' motion for summary judgment dismissing the complaint and all cross claims as against them, and granted plaintiff's cross motion for disclosure sanctions against the Dream defendants to the extent of resolving the issue of liability as against them, unanimously modified, on the facts, to deny plaintiff's cross motion for disclosure sanctions against the Dream defendants, and otherwise affirmed, without costs.

 The motion court correctly dismissed the action as against the Gorman defendants upon a record establishing that as plaintiff was attempting to board the Dream defendants' double-parked bus by way of its passenger door facing the street side of a one-way street, she was pinned between the bus and the Gormans' car when the idling bus suddenly moved without warning into heavy, stopped traffic and up against the Gormans' stationary car (see Garcia v. Verizon N.Y., 10 A.D.3d 339, 781 N.Y.S.2d 93 [2004] ).   However, the motion court incorrectly granted plaintiff's cross motion for disclosure sanctions against the Dream defendants as “unopposed” where they expressed opposition thereto in their papers labeled as opposition to the Gorman defendants' main motion for summary judgment, their failure to timely respond to the subject notice to produce was the first instance of noncompliance with their disclosure obligations, and it otherwise appears that such noncompliance was not willful or contumacious (see Frye v. City of New York, 228 A.D.2d 182, 643 N.Y.S.2d 90 [1996] ).   We have considered defendants-appellants' other contentions and find them unavailing.