Plaintiff moves for an order striking the answer of defendants New York Transit Authority and Metropolitan Transportation Authority (collectively, "NYCTA," or defendants) or in the alternative, for an order precluding the defendants from utilizing in any manner certain documents and witnesses exchanged long after the filing of a Note of Issue and Statement of Readiness, and shortly before the scheduled trial; and/or for sanctions to be levied upon the defendant's law firm for withholding critical and necessary discovery until the eve of trial.

The motion is granted for the reasons which follow.

FACTS AND PROCEDURAL HISTORY

This is a personal injury action arising out of an accident on May 14th, 2003. Plaintiff was working as a bridge painter on the tracks of the Jerome Avenue Line, in the Bronx, New York, when a track juncture at the 375 B switch abruptly closed on his fingers. Plaintiff was an employee of defendant's contractors. On December 17, 2003, plaintiff served a demand for discovery requesting, inter alia, any accident reports pertaining to the incident, safety reports, safety meeting minutes, site safety plans, and photographs in the possession of the MTA or NYCTA. Plaintiff also requested names of all site safety personnel at the premises on the date of the occurrence and a copy of the MTA Track Safety Procedures Manual. In defendants' response dated January 23, 2004, defendants stated the information requested would follow "under separate cover."

On July 30, 2004, defendants exchanged the contract between plaintiff's employer and the [*2]MTA, and a series of accident reports. The defendants also included a portion of the accident report filled out by a site safety officer. Defendant omitted a page of the same report which stated (under the heading "Cause of Accident"), "Tower not being notified of work in this area by contractors. Flagmen not notifying the tower of contractors in the area. Signal Maintainer A. Brookes not insuring that the switch area was clear of all work forces."

Shortly thereafter, on September 23, 2004, plaintiffs entered into a preliminary conference order requiring the parties to disclose the names of "all witnesses, opposing party statements and photographs." In response to that preliminary conference order, the defendants did not disclose the identity of Kevin Bress, a witness, nor the operations training track safety participants guide, nor the photographs allegedly shown to the plaintiff during his "track safety class".

Notices for depositions were presented by the plaintiff to the defendants on September 19, 2005, for at least seven MTA employees, including General Superintendent V. Geloso. All of the witnesses were requested to bring the following: "All books, records, contracts, blueprints, photographs, daily service and repair log sheets, service orders, work orders, the service log book located in the maintenance quarters for six months prior to plaintiff's accident date, a complete copy of A. Brooks employee records and file, any and all signal maintenance procedure manuals distributed to signal maintainers, and any and all documents, accident reports and records with regard to the accident of William Crespo." Defense counsel requested that plaintiff limit the deposition notices to (1) individuals directly involved in the accident (notice witnesses) and (2) employees defendants were going to call at trial. Plaintiff agreed and then took depositions of only three employees: Ainsley Brooks on August 24, 2005, Cleo Patricia Stepney on December 7, 2005, and David Varlack on February 1, 2006. The General Superintendent was unable to be deposed due to a serious illness. Plaintiff reasoned that any other employee testimony would effectively duplicate what was said by the others (as demonstrated by the depositions of the first three employees) and therefore cumulative in nature.

Plaintiff was verbally assured by defendants' counsel that all discovery had been provided. A Note of Issue was then filed on March 3, 2006.

Shortly thereafter, defendants moved to strike the Note of Issue because witnesses identified by plaintiff in his response to combined demands were exchanged without last names or addresses. The parties stipulated to an Order issued by the Court on April 20, 2006 that plaintiff would, within 30 days, comply with defendants' discovery demands of 9/24/04, 2/17/05, 7/22/05, 8/17/05, as well as provide defendants with information as to plaintiff's psychiatric treatment.

At a "final settlement conference" held on December 15th, 2006, the court (pursuant to its published rules) set a trial date of March 13, 2007. It must be noted that this date was not arbitrarily imposed by the Court, but was selected with the concurrence of both plaintiff and defendants, only after both parties assured the Court that they would be ready to proceed to trial on this final and binding date.

On January 18th, seven weeks before the March 13th trial date, defendants exchanged a copy of the NYCTA's "Operations Training Track Safety Participants Guide." On January 24 and 25, 2007, defendant NYCTA also provided a series of photographs which were allegedly shown to plaintiff during a track safety class. These photographs, which are intended to illustrate safe practices, depict the manner in which a worker should stand when working near tracks and switches.

In addition, defendant NYCTA provided a picture of the tower room (where the operator initiated [*3]the closing of the switch on plaintiff's fingers), and identified Mr. Bress, the senior director of operations, as a witness to be called at trial. Defendants assert that as of January 31, 2007, Mr. Bress was made available for an examination before trial.

On the present motion, plaintiff moves to strike defendants' answer, or in the alternative, to preclude the introduction at trial of the aforementioned documents produced post-note of issue, and the prospective testimony of Mr. Bress. Plaintiff argues that this tardy exchange is tantamount to no exchange at all, as it is effectuated long after the Note of Issue and Statement of Readiness were filed. In addition, plaintiff argues that defendants intentionally withheld the previously requested discovery so as to gain an unfair strategic advantage at trial by injecting, for the first time, a new theory of plaintiff's alleged comparative fault. Defendants argue in response that all discovery was turned over to plaintiffs immediately upon receipt from the MTA and NYCTA, and that nothing was intentionally or willfully withheld. Counsel avers that the track safety participants guide was received on January 12, 2007, and the photographs from the power point presentation from the track safety class on January 19, 2007. Both were immediately turned over to plaintiff. In addition, counsel maintains that plaintiff was notified as soon as Mr. Bress was designated as a trial witness. Defendant contends that identifying and making the witness available a month and a half before trial gave plaintiff ample time to conduct an examination of Mr. Bress. Defendant attempts to excuse the failure to comply with the preliminary conference order and the failure too timely respond to discovery demands by stating that the delay was "protracted" due to "the mass amount of cases in which the New York City Transit Authority and the MTA are named as defendants."

It has always been the policy of this Court to encourage and enforce a policy of liberal discovery, which has always been a key tenet of the rules governing disclosure. This reasoning underlying this policy is set forth in Spectrum Sys. Int'l Corp. v. Chem. Bank (78 NY2d 371 [1991]), in which the Court stated:

The CPLR directs that there shall be "full disclosure of all evidence material and necessary in the prosecution or defense of an action." (CPLR 3101 [a].) "The test is one of usefulness and reason." ( Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406.) This statute embodies the policy determination that liberal discovery encourages fair and effective resolution of disputes on the merits, minimizing the possibility for ambush and unfair surprise (see, 3A Weinstein-Korn-Miller, NY Civ Prac paras. 3101.01-3101.03). [Emphasis added.]

(See also, Cynthia B. v. New Rochelle Hospital Medical Center, 60 NY2d 452, 458 NE2d 363, 470 NYS2d 122 [1983].)

Indeed, the bias in favor of liberal discovery is not rigidly circumscribed. "Liberal discovery is favored and pretrial disclosure extends not only to proof that is admissible but also to matters that may lead to the disclosure of admissible proof." (Twenty-Four Hour Fuel Oil Corp. v. Hunter Ambulance, Inc., 226 AD2d 175, 640 NYS2d 114 [1st Dept. 1996]).

With respect to the exchange of names of witnesses, it has been held that only (1) eyewitnesses to the occurrence, and (2) notice witnesses, must be divulged. (Rios v. Donovan, 21 [*4]AD2d 409, 250 NYS2d 818 [1st Dept. 1964], superceded by statute on other grounds, Brathwaite v. State, 208 AD2d 231, 623 NYS2d 228 [1st Dept. 1995]). However, as was noted in Hoffman v. Ro-San Manor, 73 AD2d 207, 212 (1st Dept 1980):

"Fairness dictates that the identity of an individual who is to testify be discoverable by the opposing party. The search for truth is better served when the fullest possible range of disclosure is provided. Revealing the names of witnesses would not violate the general policy against invading the privacy of an attorney's course of preparation.' " ( Hickman v Taylor, 329 U.S. 495, 512.).

(See also, Fell v. Presbyterian Hospital, 98 AD2d 624, 469 NYS2d 375 [1st Dept. 1983] ["pretrial disclosure extends not only to admissible proof but also to testimony or documents which may lead to the disclosure of admissible proof"]; and, Gomez v. New York City Hous. Auth. 217 AD2d 110, 114 [1st Dept. 1995]).

The Gomez case arose out of an incident which occurred on April 20, 1991 in the building designated as 680 Tinton Avenue, Bronx, New York, which is located in the John Adams Housing Project, owned and managed by the New York City Housing Authority. The plaintiff claimed that she was followed into the building by strangers and assaulted. At trial, the defendant called two witnesses whose names had not been disclosed. Those witnesses, Denise Mallette and Doreen Smith, testified, inter alia, that plaintiff entered the building on the morning in question, through the front door, with her brother and a third individual who matched the description of the attacker. Both witnesses further testified that the three individuals obviously knew one another and that they had previously seen the third, unidentified person. Ms. Smith added that she had previously seen the unidentified individual in the company of plaintiff's family. The First Department, in ordering a new trial, stated:

"There is no dispute that plaintiff was entitled to disclosure of the names and addresses of Ms. Mallette and Ms. Smith (see, Hoffman v Ro-San Manor, 73 AD2d 207, 425 NYS2d 619; Humiston v Rochester Inst. of Technology, 195 AD2d 961, 601 NYS2d 751) and we reject defendant's narrow construction of the disclosure requirement whereby it argues that the witnesses were not "occurrence" witnesses because they did not view the actual rape. Clearly, Ms. Mallette and Ms. Smith, having viewed plaintiff enter the building with the alleged rapist, were witnesses to a large part of the circumstances leading to the [***6] rape, including the manner in which the assailant may have gained access to the building, that point being the central issue as to liability in this action".

Gomez and similar cases indicate that the categories of "occurrence" and "notice" witnesses should not be strictly construed so as to limit the availability of disclosure.

When a defendant ostensibly complies with outstanding discovery demands, and a plaintiff places a case on the trial calendar, it must be presumed that all parties consider discovery complete. Indeed, in order to insure that no party is taken by surprise, this Court precludes the parties from [*5]filing a Note of Issue unless and until it can be assured, by a true statement of readiness, that all discovery has been completed. Although this procedure can result in a delay of the scheduling of a trial, it prevents trial by ambush.

That being so, for defendant as defendant NYCTA does now to produce documentary evidence and the names of witnesses shortly before a trial (ie: long after the filing of a Note of Issue and even after the Court's "final" settlement conference) must be discouraged and condemned as undue delay in providing discovery. In the present case, the documents were delivered, and the witness proffered, some two and a half years after the preliminary conference on September 23, 2004, one year after the filing of a Note of Issue and Statement of Readiness, and not even disclosed at the "final settlement conference" in December 2006. In short, these last minute disclosures constitute ambush and unfair surprise and, if allowed, would result in inordinate delay.

The surprise witness, Mr. Bress, appears to be both an eyewitness and a notice witness under the authorities cited above. The only excuse offered by defendant for not identifying the witness in a timely manner was that the defendant has a heavy caseload. Under the circumstances presented, this excuse is insufficient in view of the nature of the untimely disclosure, which goes to the very heart of the issues involved in this action.

Plaintiff's request that Defendant's answer be stricken is too drastic a remedy. CPLR 3126(3) permits this court to impose an appropriate sanction on a party which refuses to comply with disclosure orders or wilfully fails to timely disclose information that the court concludes should have been disclosed. The striking of a pleading should be restricted to occasions when the failure to comply or disclose is found to be wilful, contumacious or in bad faith (Kauffman v Triborough Bridge & Tunnel Authority, 295 AD2d 171, 743 NYS2d 109 [2002]). In view of all the circumstances presented herein, preclusion of the documents and the testimony of the witness is appropriate.

CONCLUSION

In view of the foregoing, defendant is precluded from offering the photographs in evidence at trial, or calling Mr. Bress as a witness.

This is the Order of the Court.

Dated .................................. 2007

S.C.

Briefs: Plaintiff's .......... Defendant's ........... Relator's .......... Respondent's .......... Petitioner's