Opinion
No. 2691 Index No. 161478/21 Case No. 2024-01570
10-03-2024
Catriona Lamerique, Plaintiff-Appellant, v. Columbia University, et al., Defendants-Respondents.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant. Rivkin Radler LLP, New York (Henry Mascia of counsel), for respondents.
Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.
Rivkin Radler LLP, New York (Henry Mascia of counsel), for respondents.
Before: Kern, J.P., Oing, Kapnick, Shulman, JJ.
Order, Supreme Court, New York County (Eric Schumacher, J.), entered on or about February 13, 2024, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion to strike the answer as a sanction for failing to provide court-ordered discovery or to compel defendants to provide discovery regarding postaccident repairs, unanimously affirmed, without costs.
Supreme Court providently exercised its discretion in denying plaintiff's CPLR 3124 motion to compel discovery of postaccident repairs made to the exterior granite staircase of Dodge Hall at Columbia University, where plaintiff alleges that she tripped and fell on a gap in one step. Plaintiff failed to demonstrate that evidence of the postaccident repairs would be admissible or lead to discovery of admissible evidence (see Cook v HMC Times Sq. Hotel, LLC, 112 A.D.3d 485, 485 [1st Dept 2013]; Stolowski v 234 E. 178th St. LLC, 89 A.D.3d 549, 549 [1st Dept 2011]). This is not a case in which postaccident repair records are the only means of proving the defective condition of the accident location (see Mercado v St. Andrews Hous. Dev. Fund Co., 289 A.D.2d 148, 148 [1st Dept 2001]), because plaintiff will be able to prove the condition through her own testimony, the testimony of defendant's project manager, and the photographs taken by the project manager within days before the accident (see Poplawski v 111 Wall St. LLC, 211 A.D.3d 593, 593 [1st Dept 2022]; Stolowski, 89 A.D.3d at 549).
Although plaintiff now argues that preaccident and postaccident investigative records, as opposed to postaccident repair records, are discoverable, she did not raise that argument previously and it does not present a pure question of law that is evident from the face of the record (see e.g. Salodkaya v City of New York, 193 A.D.3d 604, 605 [1st Dept 2021]). In any event, there is no indication that any investigation was undertaken in connection with plaintiff's accident and plaintiff does not articulate any need for documents relating to defendants' long-planned postaccident repair of the entire staircase.
Under the circumstances, Supreme Court providently exercised its discretion in denying plaintiff's CPLR 3126 motion to strike the answer. Although defendants' response to plaintiff's discovery demands was slightly belated, they became current on their disclosure obligations before plaintiff's motion, and any failures were not sufficiently egregious to warrant the drastic remedy of striking the answer (see Lane v City of New York, 210 A.D.3d 502, 503 [1st Dept 2022]). Finally, plaintiff made no showing that defendants' failure to provide the documents regarding the postaccident surveys, probes, and photographs was willful and contumacious because she made no showing of entitlement to that discovery.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.