Page 1 of 7. Michele M. Woodard

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU x KARL BAUERLEIN, DONNA BAUERLEIN and ERIC REX Plaintiffs THE SALVATION ARMY, ALLIANCE ELEVATOR COMPANY, ALLIANCE ELEVATOR GROUP, LLC alk/a AEG, LLC, LANDMARK ELEV A TOR CONSULTANTS, INC., UNITEC ELEVATOR SERVICES COMPANY, KNU CORP., formerly known as, KNUDSON ELEV A TOR COMPANY and INCLINA TOR COMPANY OF AMERICA, INC. Defendants x ALLIANCE ELEVATOR COMPANY Third-Part Plaintiff M. ASSOCIATES, INC., DAVIT TALCOTT, MICHAEL CARNEVALE, JOHN DICAPUA and RICHARD CALDIERI Third-Part Defendants x INCLINA TOR COMPANY OF AMERICA, INC. Second Third-Part Plaintiff Michele M. Woodard TRIAL/IAS Part 21 Index No /2005 Motion Seq. Nos. : 07, 08, 10 & 12 DECISION & ORDER TP Index No. : /05 -against- -against- -against- SCHIDLER GROUP; SCHINDLER ELEVATOR CORPORATION; P.M. ASSOCIATES; P.M. ASSOCIATES INC. ; DAVID E. TALCOTT and/or DAVID TALCOTT; as member, principal, offcer, director of KNUDSON ELEVATOR GROUP; ALLIANCE ELEVATOR COMPANY; LANDMARK ELEV A TOR CONSULTANTS, INC. ; UNITED TEHCNOLOGIES CORPORATION OF NEW YORK CITY and/or UNITEC ELEVATOR SERVICES COMPANY; and DAVID TALCOTT individually, REPUBLIC ELEVATOR CORP., UNITED TECHNOLOGIES CORPORATION OF NEW YORK CITY; and SODEXHO; Second Third-Part Defendants x Second TP Index No. : /05 Page 1 of 7

2 Papers Read on these Motions: Defendant Alliance Elevator Company s Order to Show Cause Defendants Alliance Elevator Company & Alliance Elevator Group, L.L. C. ' s Notice of Motion Defendant and Second Third-Party Plaintifflnclinator Company Of America, lnc.'s Notice of Motion Defendant and Third-Party Plaintiff Alliance Elevator Company Amended Complaint Affidavit of Michael Scotko Defendant lnclinator Company of America s Memorandum of Law Affidavit oflnclinator Company of America s Expert Alfred H. Verschell, C. Plaintiff s Notice of Cross-Motion Defendant lnclinator Company of America, Inc. ' s Affirmation in Opposition to Allance Elevator Company s Order to Show Cause Defendant and Third-Part Plaintiff Allance Elevator Company Affrmation in Opposition to.defendant and Second-Pary Plaintifflnclinator Company of America s Notice of Motion Affidavit of Michael Scotko Defendant lnclinator Company of America s Reply Defendant and Third-Par Plaintiff Allance Elevator Company Affirmation in Opposition to lnclinator Company of America s Cross-Motion Defendant and Third-Par Plaintiff Allance Elevator Company Affrmation in Opposition to Cross-Motion of Second and Third-Par PlaintiffInclinator Company of America Defendant lnclinator Company of America s Reply in Further Support oflnclinator s Motion Defendant and Third-Party Plaintiff Allance Elevator Company Reply Affrmation In Motion Sequence #7, ALLIANCE ELEVATOR COMPANY, hereinafter referred to as ALLIANCE", moves pursuant to CPLR to quash INCLINATOR COMPANY OF AMERICA' hereinafter referred to as "ICOA",'s subpoena duces tecum dated July addressed to (1) UNITEC ELEVATOR SERVICES COMPANY, hereinafter referred to as "UNITEC", (2) International Brotherhood of Electrical Workers, Local Union 3 and (3) July 24th Joint Apprentice. Page 2 of 7

3 In Motion Sequence #8, ALLIANCE moves for an Order pursuant to CPLR vacating or modifying INCLINATOR' s Notice of Discovery and Inspection dated July In Motion Sequence #12, the plaintiffs move to Strike the Answers and Pleadings of defendants ALLIANCE, UNITEC, KNU CORPORATION., hereinafter referred to as "KNU CORP. LANDMARK ELEV A TOR CONSULTANTS, INC., and ALLIANCE ELEVATOR GROUP based on their failure to comply with ICOA' s outstanding Discovery demands or precluding the defendants from introducing proof at the trial of the action on any of the subjects in the Discovery demands in question. Briefly, the relevant facts are these: Plaintiffs commenced this action for personal injuries allegedly sustained in a malfunctioning elevette or small elevator located at 123 West 13th Street, New York, N., hereinafter referred to as " The Premises The Premises ) when it fell one story on April 21, The elevette was owned by defendant, THE SAL VATION ARMY. The elevette was manufactured and designed by ICOA. It was sold to THE SALVATION ARMY and installed in The Premises in 1977 by Inclinator of New York allegedly a separate entity from ICOA. Plaintiffs allege the elevator was improperly serviced and maintained by various defendants including ALLIANCE d/b/a UNITEC ELEVATOR COMPANY ALLIANCE ELEVATOR GROUP, LLP alk/a AEG, LLC., and KNU CORP., formerly known as KNUDSON ELEVATOR COMPANY. Plaintiffs allege ICOA improperly designed and manufactured the elevator. ICOA alleges the elevette, a small unit allegedly for private residence use only, was used by THE SALVATION ARMY as a public elevator and a freight elevator. ICOA claims it never maintained the elevator at all, and that since 1977, on its installation date, THE SAL VATION ARY' s improper utilzation of the elevette as well as co-defendants' poor service and maintenance of the unit were the sole Page 3 of 7

4 causes for the alleged incident. As to Discovery, ALLIANCE contends the Discovery requests oficoa are burdensome, etc., and ALLIANCE contends it has complied with most oficoa' s requests. ICOA, to no one s surprise, has indicated that the compliance by ALLIANCE was inadequate, at best, and was comprised mostly of denying ICOA' s proper requests for Discovery. The standard to be applied to quash a subpoena duces tecum is whether the requested information is utterly irrelevant to any proper inquiry, see Ayubo Eastern Kodak Company, Inc. 158 AD2d 641 (2nd Dept 1990). CPLR 93101(a) provides that there shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action; any matter which may lead to the discovery of admissible proof is discoverable see Bigman Dime Savings Bank of New York FSB 153 AD2d 912 (2nd Dept 1989). However, Discovery demands must be set forth with reasonable paricularity, CPLR 93120(2). A Court may exercise its broad discretion in supervising the disclosure process and that may include refusing compliance with a part' s patently excessive, overbroad and burdensome demands see Pucik Cornell University, 4 AD2d 686. An examination oficoa' s three subpoenas show they are "any and all" requests and the requests are "palpable improper see Zimmerman New York City Transit Authority, 115 AD2d 738 (2nd Dept 1985). ICOA' s letter request dated July (see Exhibit A annexed to ALLIANCE' s cross Motion) was sent only three (3) days before the deposition date of ALLIANCE employee Carlos Soto, and there are no limitations on the requests. Page 4 of 7

5 Many oficoa' s requests are unduly prolix, vexatious and oppressive and must be vacated see Blasi Marine Midland Bank of Southeastern New York, NA 59 AD2d 932 (2nd Dept 1977). Production of documents such as Building Department violations cannot be compelled to the extent that they are available as a matter of public record see Penn Palace Operating, Inc. Two Penn Plaza Associates 215 AD2d 231 (1st Dept 1995). ALLIANCE should not be required to provide same. Thus, the three subpoenas dated July 21st and July 24th are QUASHED and ICOA' s Notice of Discovery and Inspection is VACATED. Some oficoa' s requests may be relevant and proper. Clearly, personnel fies, training fies payroll records, etc., would be relevant as to the repairmen, Le., the employees of various defendants who had worked on, serviced, etc., the elevette see Greico Albany Ambulette Services, Inc., 232 AD2d 938 (3rd Dept 1996). As to any requests for personnel or payroll records, the parties may wish the Court to examine same so as to delete private sensitive matters, Le., social security numbers, and other private issues that do not relate to the experience and training of the individuals. Recently, the Appellate Division has held that in an incident where a plaintiff was injured when the elevator she was in malfunctioned and dropped, the plaintiff was entitled to documents relating to prior similar accidents, subsequent similar accidents, post-accident repairs and modifications to the extent available see Mercado St. Andrews Housing Development Fund Company Inc. 289 AD2d 148 (1st Dept 2001); Longo Armor Elevator Co., Inc. 278 AD2d 127 (1st Dept 2000); for discovery of evidence of subsequent similar accidents is material in cases where a defect in design or manufacture of the product or item is alleged see Desson Trustees of Net Realty Holding Trust 229 AD2d 512 (2nd Dept 1996). That is the case here. Thus, ICOA would be entitled to same. Page 5 of 7

6 ALLIANCE contends the elevator had been dismantled after the incident. ICOA is entitled to a sworn affidavit to this effect. CPLR 9310 I (g) provides for the disclosure of any written report of an accident prepared in the regular course of business; it is only when an accident report has not been made in the regular course of business that it may be conditionally exempt if it is made solely for the purposes of litigation; the burden of proving that an accident report is exempt because it was not prepared in the regular course of business and that it was made solely for the purposes of litigation is on the par seeking to prevent disclosure see Miranda Blair Tool Machine Corp. 114 AD2d 941 (2nd Dept 1985). The Appellate Division noted there was a sharp distinction between accident reports which result from the regular internal operations of any enterprise authority or business and those which are made or produced in connection with a report of an accident to a liabilty insurer; the first is discoverable, the second is not see Vernet Gilbert 90 AD2d 846 (2nd Dept 1982). As to the asset purchase agreement wherein ALLIANCE elevator Group purchased assets of other entities (ICOA alleges the ALLIANCE Elevator Group, LLC, Republic, etc.) and ALLIANCE is required to disclose the entire contract, not just the clause beneficial to ALLIANCE for ICOA, without an exemption or some valid reason for non-disclosure, is entitled to all information bearing on the controversy which wil assist preparation for trial see Allen Crowell- Coller Pub. Co. 21 NY2d 403 ( 1968). ICOA' s and plaintiffs ' Cross- Motions to Strike/Compel/Preclude are GRATNED only to the extent that as per this Court' s directive, the first round of depositions shall occur and be completed. That, ICOA shall be deposed before it requests further depositions. Shortly thereafter, the Court shall set up a Page 6 of 7

7 Conference date wherein the parties shall appear to schedule any further depositions needed and exchange relevant and proper Discovery that is stil required and outstanding, see See Penn Palace Operating Inc. Two Penn Plaza Associates, supra. It is hereby ORDERED, that the parties shall adhere to the Discovery guidelines set forth in the case law cited supra. Finally, extreme incivility by Counsel to one another is not to be tolerated, and it is generally within the discretion of the trial court to determine the appropriate penalty-striking of Pleadings, Sanctions Preclusion-for Discovery misconduct see Corsini Haul International, Inc. 212 AD2d 288 (1st Dept 1995). The Court notes that a spirit of cooperation should and must accompany the advocates of the respective parties assigned to the above duty. If the parties use one tenth of the effort utilzed to assemble the Motions and Cross-Motions herein, the future proceedings shall be very productive ones. DATED: November 3, 2006 Mineola, N. This constitutes the DECISION and ORDER of this Court. ENTER: RON. MICRE NTERED NO' SSAU COUNTY, OFFlfI NTY CLERK' G:\LAW DEPT. SEND UPS\Bauerlein & Rex v Salvation Ary.wpd Page 7 of 7