FILED: NEW YORK COUNTY CLERK 06/08/ :53 PM INDEX NO /2014 NYSCEF DOC. NO. 47 RECEIVED NYSCEF: 06/08/2017

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK X ARLENE CARTER, Index No /14 -against- Plaintiff, NOTICE OF MOTION NEW YORK CITY TRANSIT AUTHORITY and METROPOLITAN TRANSPORTATION AUTHORITY, REFER TO: HON. LYNN R. KOTLER, J.S.C. Defendants. MADAM/SIR: PLEASE TAKE NOTICE, that upon the annexed Affirmation of Robert D. Rosen, Esq. affirmed the 7t" day of June, 2017, the Exhibits annexed hereto and upon all the pleadings and proceedings heretofore had herein, the undersigned will move this Court at the I.A.S. Motion Submissions Part, Room 130 at the Courthouse located at 60 Centre Street, New York, New York on the 3rd day of July, 2017 at 9:30 A.M. o'clock on said day or soon thereafter as counsel can be heard for an Order: A. Pursuant to C.P. L. R. Rule 2221(d) granting Plaintiff leave to reargue the Decision of the Hon. Lynn R. Kotler dated April 20, 2017 and served with Notice of Entry on May 9, 2017 granting Defendants' Motion to Vacate and Set Aside the Decision and Order on In Camera Review of the Hon. Michael D. Stallman, dated September 13, 2016; and B. Upon granting reargument, reversing its decision and reinstating the Decision and Order of the Hon. Michael D. Stallman dated September 13, 2016 which directed Defendants to turn over to PlaintifF certain post-accident service call reports and production by station and date-structure reports; and C. Extending the time within which PlaintifF is to file her Note of Issue so as to allow for the completion of discovery herein; and 1 of 10

2 D. Together with such other and further relief that this Court may deem just and proper. PLEASE TAKE FURTHER NOTICE, that pursuant to C.P.L. R. 2214(b) answering papers, if any, must be served at least seven (7) days prior to the return date of this Motion. Dated: Great Neck, New York June 7, 2017 TO: LAWRENCE HEISLER, ESQ. Attorney for Defendants NEW YORK CITY TRANSIT AUTHORITY and METROPOLITAN TRANSIT AUTHORITY 130 Livingston Street Torts Division 11th Floor Brooklyn, New York (718) Respectfully submitted, ROBERT D. ROSEN, ESQ. LAW OFFICES OF IRA M. PERLMAN, P.C. and ROBERT D. ROSEN, P.C. Attorneys for Plaintiff 60 Cutter Mill Road, Suite 206 Great Neck, New York (516) of 10

3 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x ARLENE CARTER, Plaintiff, -against- Index No /14 AFFIRMATION IN SUPPORT OF PLAINTIFF'S MOTION TO REARGUE NEW YORK CITY TRANSPORTATION and METROPOLITAN TRANSPORTATION AUTHORITY, Defendants x ROBERT D. ROSEN, an attorney duly licensed to practice law within the State of New York, hereby affirms the following to be true under the penalties of perjury: 1. Your Affirmant is counsel for PlaintifF ARLENE CARTER and as such, I am fully familiar with the facts and circumstances surrounding this action. I make this Affirmation in Support of Plaintiff's Motion seeking leave to reargue the Decision of the Hon. Lynn R. Kotler dated April 20, 2017 and served with Notice of Entry on May 9, 2017 which vacated the Decision and Order dated September 13, 2016 of the Hon. Michael D. Stallman. After in camera inspection, Justice Stallman's Decision and Order directed Defendants to turn over to Plaintiff certain Post-Accident Service Call Reports and Production by Station and Date Structures Reports. 2. Your Affirmant respectfully submits that in vacating and setting aside Justice Stallman's Decision and Order directing production of specific post-accident repair records the Court misapplied the law relating to said discovery. 3. Annexed hereto and marked as Exhibit ~~A" is a copy of the Decision of the Hon. Lynn R. Kotler, J.S.C. dated April 20, A copy of the Decision and Order of the Hon. Michael D. Stallman dated September 13, 2016 is annexed hereto and marked as Exhibit "B". 3 of 10

4 4. By way of brief background, Plaintiff ARLENE CARTER commenced this action as a result of serious injuries sustained on June 22, 2013 as she was attempting to walk through the 34th Street and 8th Avenue subway station while in route to an express "A" train which had been rerouted to a local track as it was after 10:00 P.M. Plaintiff was on her way home and was coming from her place of employment, Macy's Herald Square, after having worked on the subject date of accident. As Plaintiff was walking she stepped down on a drainage grating which was loose and shifted causing her left leg to go into a drainage hole which should have been secured and covered by the grating. Copies of photographs of the subject unsecured drain cover are annexed to Plaintiff's underlying opposition papers and marked as Exhibit ~~C". As a result of her left leg going into the hole, Plaintiff fell approximately 2 to 3 feet down causing injury to her left knee. Injuries include inter a/ia an extensive complex tear of the posterior horn of the lateral meniscus requiring Plaintiff to undergo partial medial and lateral meniscectomies of the left knee; synovectomy of the patellofemoral and lateral compartments; chondroplasty of the medial aspect of the trochlear groove and chondroplasty of the lateral femoral condyle. 5. While the Court, in its Decision cited Defendant NEW YORK CITY TRANSIT AUTHORITY'S position that subsequent repair records may only be exchanged when there is a question of control or in the case of an alleged manufacturing defect, your Affirmant respectfully submits that the law is not nearly as limiting as Defendants posit. Plaintiff submits that Justice Stallman was absolutely correct in directing the production of said records as it is well settled that post-accident repairs are discoverable when they reveal the nature and existence of a dangerous or defective condition and also go to the issue of notice. Albino v. New York City Housing Authority, 52 A.D.3d 321 (1~ Dept., 2008); Mercado v. St. Andrews Housing Development Fund, Co., 289 A.D.2d 148 (1~ Dept., 2001). Consequently, your Affirmant respectfully submits that in directing the production of specific records Justice Stallman was following well settled doctrine of law in directing production of specific records "to see what was done to the drain/drain cover to attach it and to determine of the repair records show the nature of the defect in the drain/drain cover." Clearly, the circumstances surrounding why the drain cover became unsecured should be made available and not concealed. Defendants' steadfast effort to conceal this information is contrary to the law. 4 of 10

5 6. Significantly, in his Affirmation in Support of Defendants Motion to Vacate Justice Stallman's Decision and Order Defendants' counsel acknowledges that ~~there is an entry in the records examined by the Court which shows a repair to a drain cover following a customer injury one day post-accident." Affirmation of David E. Berkowitz, Esq. dated October 19, 2016 at 8. Clearly, this repair record is discoverable in an effort to ascertain the nature and existence of the defect which caused the drain cover to come loose and unsecured. (A copy of Defendants' underlying moving papers to vacate Justice Stallman's decision are annexed hereto and marked as Exhibit ~~C"; Plaintiff's Affirmation in Opposition dated January 13, 2017 is annexed hereto and marked as Exhibit '~D"; and Defendants' Reply Affirmation dated February 13, 2017 is annexed hereto and marked as Exhibit "E" 7. Defendants counsel's assertion that there is no advanced technology involved with subsequent repair records which will shed light upon the instrumentality and nature of a mechanical problem, (Berkowitz Affirmation at 9), is meaningless. There is no issue that the drain cover became loose and unsecured. This clearly is a mechanical condition which would be reflected in the subsequent repair reports. It is also all the more reason why Justice Stallman directed several specific Post-Accident Repair Records to be produced. Simply stated, Justice Stallman correctly recognized that the nature and/or existence of the defect or dangerous condition which caused the drain cover to come loose and unsecured may be evidenced in the repair records and is obviously a mechanical problem relating to how it was secured. 8. Significantly, Justice Stallman did not order Defendant to immediately turn over the records but rather directed Defendants to submit records for an in camera inspection for the Court to determine what, if any, records are material, relevant and discoverable. 9. By Order dated September 13, 2016 the Court found: Having reviewed the documents, the Court finds that the following pages might contain entries about the drain or drain cover at issue, or about the drain maintenance in vicinity of plaintiff's alleged incident, and so these entries are highlighted on copies that the Court made of the documents submitted in camera. Service Call Reports Pages 1, 21, 27, 37, 38, 42, 49, 50, 51, 65, 69, 70 and of 10

6 Production by Station and Date Structures Pages 1, 2, 5, 6, 7, 10, 12, 14, 16, 19, 20, 22, 23, 28, 29, 30, 31 and 39 of 45. Accordingly, it is hereby ordered that defendants shall turn over, within 35 days, the highlighted entries on these records, and the non-highlighted portions of these pages maybe redacted. **** Defendants' counsel is directed to maintain intact these in camera materials, and the highlighted copies of the pages to be disclosed, until final disposition of this action, and through any appeal after final disposition (Exhibit'~B"annexed hereto) 10. In Albino v. New York City Housing Authoritx, 52 A.D.3d 321 (1~ Dept., 2008) the First Department affirmed the decision of the IAS Court which after in camera review directed production of post-accident repair records. In affirming, the First Department held that evidence of repairs to a hot water system is discoverable under the limited circumstances to show that a particular condition was dangerous. Likewise, the records directed to be produced by Justice Stallman are likewise material and relevant to the issue of the securing of the drain cover at a high pedestrian traffic location. 11. Your Affirmant also respectfully submits that Longo v. Armor Elevator Co., 270 A.D.2d 127 (1~ Dept., 2000) is clearly germane to the issue herein. The fact that the Defendant in Lonao was an elevator company does not mitigate its relevancy. While the claim in Lonao was predicated upon the fact that the elevators were defectively designed and incompatible with the buildings structural dynamics, in this instance, the fact that the drain cover did not remain secured is likewise similar in that the manner in which it was secured was not compatible with high volume pedestrian traffc at this subway station location. 12. See also Mercado v. St. Andrews Housing Development Fund Companx, Inc., 239 A.D.2d 148 (1~ Dept., 2001) wherein the First Department directed the production of postaccident sidewalk repair records in a trip and fall case, as same related to the defective condition of the sidewalk and the issue of notice. 6 of 10

7 13. Further, while this Court rejected Plaintiff's reliance on the First Department's Decision in Francklin v. New York Elevator Companx, 38 A.D.3d 329 (1~ Dept., 2007) by stating that said decision does not set forth the rationale for the production of subsequent repair records and ~~therefore does not mandate a different result here", the fact remains that the First Department directed Defendant to disclose all of its maintenance and repair records concerning the subject elevator for the six month period following the accident. The First Department unequivocally held: That the subject records of post-accident repairs are discoverable (see Longo v, Armor Elevator Co., 270 A.D.2d 127 [1~ Dept., 2000]), subject to the proviso that they are not to be introduced at trial except upon a showing of relevance to the condition of the elevator at the time of the accident, and only if introduced in a way that there does not reveal that repairs were made (see Giannelli v. Montgomery Kone, Inc., 175 MISC.2d 32, 34 [1997]) at Francklin v. New York Elevator CompanX, 38 A.D.3d A reading of the Decision in Giannelli v. Montgomery Kone, Inc., 175 MISC.2d 32, cited by the First Department in Francklin, reveals the Court held that where records of post-accident repairs can shed light on the condition existing at the time of an accident, there is no reason why that information should be cloaked in secrecy. 15. These cases are consistent with the C.P.L. R which provides: (a) Generally. There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by: (1) A party, or the officer, director, member, agent or employee of any party. 16. In its seminal decision in Allen v. Crowell-Collier Publishing Co., 21 N.Y.2d 403 (1968), the Court of Appeals enunciated the broad application of C.P.L.R. 3101: The words, "material and necessary", are, in our view, to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason. C.P.L.R (subd. a) should be construed, as the leading tee on practice puts it, to permit discovery of testimony "which is sufficiently related to the issues and litigation to make the effort to obtain it in preparation 7 of 10

8 for trial reasonable" (3 Weinstein-Korn-Miller, N.Y. Civ. Prac., Par , p ) Allen 21 N.Y.2d at Significantly, Defendants have raised no claim of privilege or prejudice regarding the production of these records. How they are to be used, if at all, is a decision to be made by the Court at the time of trial. However, this issue is separate and apart from the records being discoverable. 18. Finally, discovery is ongoing herein and additional depositions of Defendants' witnesses must be taken. Accordingly, request is made that the time within which Plaintiff is to file her Note of Issue be extended for a reasonable period so that discovery may be completed. WHEREFORE, your Affirmant respectfully requests that Plaintiff's Motion be granted in its entirety, together with any other and further relief as to this Court may deem just and proper. Dated: Great Neck, New York June 7, 2017 ROBER. R SEN 8 of 10

9 STATE OF NEW YORK ) COUNTY OF NASSAU ) ss.. Deborah Bott, being duly sworn, states as follows: I am over 18 years of age, not a party to the within action, and reside in Lindenhurst, New York. On June _~, 2017 I served the annexed NOTICE OF MOTION and AFFIRMATION IN SUPPORT OF PLAINTIFF'S MOTION TO REARGUE to persons) or party(ies) designated below by mailing a true and complete copy of same in a postage pre-paid envelope, and deposited same in a post office or official depository of the United States Postal Service within New York State, at the last known address of the addressees) as set forth herein: LAWRENCE HEISLER, ESQ. Attorney for Defendants fvew YORK CITY TRANSIT AUTHORITY AND METROPOLITAN TRANSPORTATION AUTHORITY 130 Livingston Street Tort Division 11th Floor Brooklyn, New York i ~,, r ~-. :~ Swor to before me this day of June, 2017 /~ l/ / / l `~fvotary PUBLIC ROBERT D. ROSEN NOTARY PUBLIC, STATE OF NEW YORK NO.02R COMMIS~IC~N EXPIRES 05/15/ of 10

10 Index/Docket No /2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ARLENE CARTER, Plaintiff, -against NEW YORK CITY TRANSIT AUTHORITY and METROPOLITAN TRANSPORTATION AUTHORITY, Defendants. NOTICE OF MOTION and AFFIRMATION IN SUPPORT OF PLAINTIFF'S MOTION TO REARGUE Attorneys for: plaintiff ~~~~~~ LAW OFFICES OF IRA 1VI. PERI,1l~IAN, P.C. AND ROBERT D. ROSEN, P.C. 60 CUTTERMILL ROAD SUITE 206 GREAT NECK, NEW YORK TELEPHONE: (212) ~ (516) FACSIMILE: (516) Pursuant to 22 NYCRR a, the undersigned, an attorney admitted to practice in the courts of New York State, Certifies that, upon information and belief and reasonable inquiry, (1) the contentions contained in the annexed document are not frivolous and that (2) if the annexed document is an initiating pleading, (i) the matter was not obtained through illegal conduct, or that if it was, the attorney or other persons responsible for the illegal conduct are not participating in the matter or sharing in any fee earned therefrom and that (ii) if the matter involves potential claims r personal injury or wrongful death, the matter was not obtained in violation of 22 NYCRR a. ~~ /l Dated: June 8, 2017 Signature: ~ ~~/ I ~`1~ V ~- Print Signer's Name: ROBERT D. ROSEN, ESQ. 10 of 10