Shatzkamer v Eskind (1989 NY Slip Op 50000(U))

Shatzkamer v Eskind

1989 NY Slip Op 50000(U) [34 Misc 3d 154(A)]

Decided on July 19, 1989

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Marr Shatzkamer and Gail Shatzkamer, Plaintiffs-Respondent,

against

Sidney Eskind, Claire Schwartz, Defendants, and The City of New York, Defendant-Appellant THEODORE TERMINE AND JEAN TERMINE, Plaintiffs-Respondent, THE CITY OF NEW YORK, Defendant-Appellant, -and- CON ED a/k/a CONSOLIDATED EDISON OF NEW YORK AND BROOKLYN GAS, NO. lOa K

Appeals by defendant-appellant The City Of New York [the City] from the orders of Civil Court, Kings County (Greenstein, J,) which granted the motions of the respective plaintiffs to strike the answers of the City to the extent of decreeing that said plaintiffs need not prove that the City had prior notice of the alleged defects prior to the accident (see 139 Misc2d 672). Orders unanimously reversed without costs and motions remanded for determination de novo upon a hearing pursuant to CPLR § 2218, as to the reasonableness and propriety of the steps taken by the City to comply with the court's interim discovery orders relating to notices of claim and notices of defect.

The City's indexing system as to notices of claim and notices of defect filed prior to September 2, 1987 complied with the then-controlling statutory authority which did not require indexing by location (see, Cohen v City of New York, 143 AD2d 388; General Municipal Law Sections 50-f and 50-g as amended effective September 2, 1987; L 1987, c 603. Section 6). We note that the decision of the court below is in part based upon the alleged insufficiency of the City's search for such notices separate and apart from its failure to index them by location. It is our view that the sanctions imposed by the court (in effect, the preclusion of asserting the defense of non-compliance with the Pothole Law [section 7-201 (c) of the Administrative Code of the City of New York]) was an inappropriate exercise of discretion since the alleged inadequacy of the City's searches were not clearly wilful or contumacious (cf., Joseph V Roller Castle, Ltd., 100 [*2]AD2d 839).

Accordingly, a hearing is required as to the steps taken by the city to comply with the interim orders (see, Zuccaro v The City of New York, NYLJ, July 12, 1988 [App Term 2d and 11th Jud Dists]), and also as to what further investigatory steps, if any, reasonably can be taken by the City to locate documents indicating that the city had written notice of the alleged roadway defects at the time of the respective accidents.
Decision Date: July 19, 1989