The plaintiff moves for an order pursuant to the CPLR and rules of the Court to compel the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall to fully comply with plaintiff's notices for discovery and inspection dated August 26, 2006, and December 26, 2006, and directing in the event these defendants fail to fully comply with plaintiff's notices for discovery and inspection dated August 26, 2006, and December 26, 2006, within 10 days that their answers be stricken entirely, and submitting the defendant Nassau Veterans Memorial Coliseum and Exhibit Hall to oral examination before trial under oath by an individual who was and still is in the employ of the defendant Nassau Veterans Memorial Coliseum and Exhibit Hall, either on a full time or part time basis as a supervisor and was present at both the time of the incident and pre-event meeting held by the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall supervisors on the day of the event, to be conducted within 21 days, or its, the defendant Nassau Veterans Memorial Coliseum and Exhibit Hall answer be stricken entirely in accord with CPLR 3126, and precluding the defendants World Champion Wrestling, Inc. and Nassau [*2]Veterans Memorial Coliseum and Exhibit Hall from giving evidence at the trial regarding the matters for which demands have not been delivered pursuant to CPLR 3042 (c) including the names and addresses of each individual defendant purport to be witnesses to the subject altercation giving rise to this cause of action and the pre-event meeting between the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall supervisors on the day of the event, separately delineating the witnesses in the proper categories, and deeming the issue of negligence resolved against the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall for the purposes of this action should these defendants not timely and fully comply with the requests of the plaintiff in this motion. The defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall oppose this motion.

The underlying personal injury action seeks to recover monetary damages for alleged injuries sustained by the plaintiff during a World Championship Wrestling Monday Nitro event at the Nassau Veterans Memorial Coliseum on September 25, 2000. The plaintiff claims to have been a spectator at the event, and was injured when professional wrestler Scott Carl Rechsteiner, a/k/a Scott Steiner, a/k/a Big Poppa Pump jumped over a fence into the spectator area, and attacked the professional football player, John "Jumbo" Elliot, who was seated near the plaintiff.

The attorney for the plaintiff states, in a supporting affirmation dated January 16, 2007, the examinations of the plaintiff and the defendants World Champion Wrestling, Inc. N/K/A Universal Wrestling Corp. and Nassau Veterans Memorial Coliseum and Exhibit Hall have been conducted. The attorney for the plaintiff points out, however, the person produced, Salvatore Tese, by the defendant Nassau Veterans Memorial Coliseum and Exhibit Hall, while employed as a security guard by the defendant Nassau Veterans Memorial Coliseum and Exhibit Hall on the night of the subject event, and present at the Nassau Veterans Memorial Coliseum, lacked any knowledge regarding: (1) the happening of the altercation; (2) the placement of the various security guards in and about the arena; (3) the information imparted from his supervisor regarding audience participation, and particularly celebrities in the audience, despite this witness' testimony there are always pre-event meetings held between the wrestling federation and the Nassau Veterans Memorial Coliseum security guard supervisors with one of the topics always discussed being the extent of audience participation particularly with celebrities, including actors, actresses, sports, singers, etc., and (4) how security would handle that involvement in order to run an orderly show. The attorney for the plaintiff does concede Tese did provide the names of the event coordinator, various supervisors, and even the identity of the security guard the plaintiff believes was closest to the plaintiff when the incident occurred. The attorney for the plaintiff, however, contends at least one of these Nassau Veterans Memorial Coliseum employees should have been produced for oral deposition, and in light of Tese's testimony it is more obvious Tese was not the proper [*3]person to be deposed. The attorney for the plaintiff suggests the appropriate witnesses would be the briefing lieutenants of the Nassau Veterans Memorial Coliseum, to wit Jimmy Barrone and Kenny Mattarona, or their supervisor and event security coordinator, Loren La Raus, or part time security guard Brian Schneider, who worked close to the incident.

The attorney for the plaintiff also states, in the supporting affirmation dated January 16, 2007, some of the items in the August 15, 2006 demand were furnished, but none of those documents demanded in the December 26, 2006 notice have been provided despite the plaintiff attorney's good faith effort to obtain the items without Court intervention. The attorney for the plaintiff asserts the plaintiff needs the documents demanded, as well as the production of an appropriate witness for the defendant Nassau Veterans Memorial Coliseum and Exhibit Hall. The attorney for the plaintiff acknowledges the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall have provided in previous disclosure dated August 1, 2006, the names of six possible witnesses and addresses for five of those witnesses, however, however the defendants inappropriately qualified the response noting, "all of the above individuals are part time employees of defendant Nassau Coliseum." The attorney for the plaintiff takes issue with that result, and requests the Court not countenance tactics. The attorney for the plaintiff grants the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall provided a seating chart at the December 12, 2006 deposition, which apparently contains the names of the security guards and ushers assigned to the various locations, but the attorney for the plaintiff states the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall are disingenuous by simply identifying part time employees knowing none of those individuals are reflected on the seating chart where the names of the various security guards are listed. The attorney for the plaintiff avers a review of the seating charts with assignment of the security guards and ushers along with the Nassau Veterans Memorial Coliseum nurse's report reveals the plaintiff sat in the first row, A row, of section 9F, which is ringside, yet the defendant Nassau Veterans Memorial Coliseum and Exhibit Hall did not produce any one of those individuals on the seating charts with assignment of the security guards and ushers, and did not name those individuals, Nassau Veterans Memorial Coliseum security guards, whose names are listed on the seating chart as witnesses, but rather substituted others on its August 1, 2006 exchange knowing none of those individuals was present in the immediate area when the incident occurred as they were not assigned to the subject area. The attorney for the plaintiff contends, under all of these circumstances, the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall's continued failure to respond to the spirit and intent of the Court's order, and this affirmant's letters, without offering an explanation, evinces a willful, wanton and contumacious disregard for the rules of discovery. [*4]

The attorney for the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall states, in an opposing affirmation dated February 9, 2007, a corporate defendant, as a matter of law, has the right in the first instance to determine which of its representatives will appear for an examination before trial, so the production of Tese was proper. The attorney for the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall notes the plaintiff's claims of insufficiency with respect to Tese's deposition, but asserts to obtain the deposition of a different witness, the plaintiff is required to show the witness originally produced had insufficient knowledge or was otherwise inadequate, and the individual sought for deposition possesses information material necessary for the prosecution of the case. The attorney for the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall contends the plaintiff has failed to meet that burden, and also argues the burden of providing an eyewitness to substantiate the plaintiff's claim should not be placed on these defendants. The attorney for the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall also asserts an eyewitness on behalf of these defendants, if one even exists, is unnecessary for the prosecution of this instant matter, especially since the plaintiff has already identified two non-party witnesses, Frank Dono and John Casalaro, who have been subpoenaed to give testimony regarding their eyewitness accounts of the subject incident. The attorney for the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall points to the plaintiff's bill of particulars, in the opposing affirmation dated February 9, 2007, and states Tese was an appropriate and adequate witness to testify for the defendant Nassau Veterans Memorial Coliseum and Exhibit Hall regarding the allegations set forth in the plaintiff's complaint and bill of particulars, and that testimony sufficiently addressed all of the plaintiff's claimed deficiencies. The attorney for the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall contends the plaintiff's request for an additional witness is simply a fishing expedition, and the defense should not be required to produce numerous witnesses because the plaintiff failed to conduct a more thorough deposition. The attorney for the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall avers the plaintiff should be precluded from deposing additional witnesses from the Nassau Veterans Memorial Coliseum based upon speculation the witness now sought to be depose, to wit Jimmy Barone, Kenny Mattarona or Loren La Raus will lead to the discovery of addition material necessary to the plaintiff's prosecution of this action.

The attorney for the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall also notes, in the opposing affirmation dated February 9, 2007, this instant motion is dated January 16, 2007, two days before the return date of the plaintiff's December 26, 2006 discovery demand. The attorney for the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum [*5]and Exhibit Hall points out the plaintiff's discovery return date of January 18, 2007, is contrary to CPLR 3122 and CPLR 2103 and General Construction Law § 25. The attorney for the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall contends the earliest return date the plaintiff could have requested in the compliance with the notice the plaintiff served by mail on December 26, 2006, was January 22, 2007, so the plaintiff's purported good faith letter served on January 10, 2007, should be considered a nullity and this portion of the plaintiff's motion regarding the notice for discovery and inspection, should be summarily denied. Nevertheless, the attorney for the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall points to Exhibit 1 attached to the opposition papers as the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall's response to the plaintiff's December 26, 2006 notice for discovery and inspection.

The attorney for the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall contends, in the opposing affirmation dated February 9, 2007, there is no evidence the defendant Nassau Veterans Memorial Coliseum and Exhibit Hall's conduct, throughout this litigation, has been willful, contumacious, or in bad faith. The attorney for the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall submits this defendant produced an adequate and appropriate deposition witness based on the allegations contained in the plaintiff's pleadings, and these defendants responded to all discovery orders and the plaintiff's various discovery demands. The attorney for the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall contends the plaintiff's motion to strike the defendants' answers should be denied in its entirety.

The attorney for the plaintiff challenges the defense opposition, in a reply affirmation dated February 13, 2007, and states the defense affirmation fails to disclose there was a preliminary conference order compelling the defendant Nassau Veterans Memorial Coliseum and Exhibit Hall to produce a witness for oral deposition, and that deposition, though scheduled and confirmed on two prior occasions, did not go forward because the designated witness never appeared. The attorney for the plaintiff claims on December 12, 2006, Tese appeared for the deposition substituting for the original witness. The attorney for the plaintiff concedes the defense opposition papers correctly summarize Tese's significantly limited testimony since the witness had no knowledge of the essential details about the incident. The attorney for the plaintiff reiterates the observations and requests from the supporting affirmation dated January 16, 2007, and contends the conduct of these defendants is willful, and contumacious. The attorney for the plaintiff claim these defendants have not complied with the preliminary conference order compelling the defendant Nassau Veterans Memorial Coliseum and Exhibit Hall mandating that names and addresses of witnesses be exchanged, and requests the Court [*6]designate the appropriate witness for oral deposition from the three names provided, and the failure to appear and submit to oral deposition by that witness result in a self-executing order striking the defendants' answer. The attorney for the plaintiff requests the defendant be bound by the February 9, 2007 response to the plaintiff's notice for discovery and inspection, and only be permitted to produce at trial the three individuals it revealed as witnesses, Salvatore Tese, Frank Dono and John Casolaro. The attorney for the plaintiff claims the defense tactics in producing a witness without knowledge regarding the subject matter in the plaintiff's notices for discovery and inspection resulted in the plaintiff's inability to ascertain the content of the pre-event meeting, security decisions, and especially involvement with audience celebrities, so the defendants should be compelled to fully comply with such demands now or a self-executing order should be issued striking their answers unless there is an appropriate response with documentation on or before a date to be set by the Court.

CPLR 3126 provides for penalties for the refusal to comply with a court order or to disclose. That statute specifically states:

If any party, or a person who at the time a deposition is taken or an examination or inspection is made is an officer, director, member, employee or agent of a party or otherwise under a party's control, refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed pursuant to this article, the court may make such orders with regard to the failure or refusal as are just, among them:

(1) an order that the issues to which the information is relevant shall be deemed resolved for purposes of the action in accordance with the claims of the party obtaining the order; or (2) an order prohibiting the disobedient party from supporting or opposing designated claims or defenses, from producing in evidence designated things or items of testimony, or from introducing any evidence of the physical, mental or blood condition sought to be determined, or from using certain witnesses; or (3) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party.

If a party fails to respond to a demand in a timely fashion or fails to comply fully with a demand, the party seeking the bill of particulars may move to compel compliance, or, if such failure is willful, for the imposition of penalties pursuant to subdivision (d) of this rule.

If a party served with a demand for a bill of particulars willfully fails to provide particulars which the court finds ought to have been provided pursuant to this rule, the court may make such final or conditional order with regard to the failure or refusal as is just, including such relief as is set forth in section thirty-one hundred twenty-six of this chapter.

"It is well established that a corporation has the right in the first instance to determine which of its representatives will appear for an examination before trial" (Pisano v. Door Control, Inc., 268 AD2d 416, 702 NYS2d 307). The defendant Nassau Veterans Memorial Coliseum and Exhibit Hall is entitled in the first instance to designate which of its personnel to produce for a deposition. The plaintiff is not entitled to designate a specific person to be deposed on behalf of this defendant. (see vanBergen v. Long Beach Medical Center, 277 AD2d 374, 717 NYS2d 191). The production of Tese, under these circumstances was proper because the plaintiff "failed to show that this witness had insufficient knowledge or was otherwise inadequate [citations omitted]".(Pisano v. Door Control, Inc., supra , at 417).

The relief sought by the plaintiff is denied to compel the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall to fully comply with plaintiff's notices for discovery and inspection dated August 26, 2006, and December 26, 2006, and directing in the event these defendants fail to fully comply with plaintiff's notices for discovery and inspection dated August 26, 2006, and December 26, 2006, within 10 days that their answers be stricken entirely, and submitting the defendant Nassau Veterans Memorial Coliseum and Exhibit Hall to oral examination before trial under oath by an individual who was and still is in the employ of the defendant Nassau Veterans Memorial Coliseum and Exhibit Hall, either on a full time or part time basis as a supervisor and was present at both the time of the incident and pre-event meeting held by the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall supervisors on the day of the event, to be conducted within 21 days, or its, the defendant Nassau Veterans Memorial Coliseum and Exhibit Hall answer be stricken entirely in accord with CPLR 3126.

22 NYCRR 202.7 provides:

There shall be compliance with the procedures prescribed in the CPLR for the bringing of motions. In addition, except as provided in subdivision (d) of this section, no motion shall be filed with the court unless there have been served and filed with the motion papers (1) a notice of motion, and (2) with respect to a motion relating to disclosure or to a bill of particulars, an affirmation that counsel has conferred with counsel for the opposing party in a good faith effort to resolve the issues raised by the motion.

The relief sought by the plaintiff is denied for the defendant Nassau Veterans Memorial Coliseum and Exhibit Hall to submit to further oral examination before trial under oath by an individual who was and still is in the employ of the defendant Nassau Veterans Memorial Coliseum and Exhibit Hall, either on a full time or part time basis as a supervisor and was present at both the time of the incident and pre-event meeting held by the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall supervisors on the day of the event, to be conducted within 21 days, or its, the defendant Nassau Veterans Memorial Coliseum and Exhibit Hall answer be stricken entirely in accord with CPLR 3126, and precluding the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall from giving evidence at the trial regarding the matters for which demands have not been delivered pursuant to CPLR 3042 (c) including the names and addresses of each individual defendant purport to be witnesses to the subject altercation giving rise to this cause of action and the pre-event meeting between the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall supervisors on the day of the event, separately delineating the witnesses in the proper categories. The sanction of preclusion requested by the plaintiff on these facts is impermissible because the plaintiff was not shown the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall's alleged omissions were willful or contumacious (see CPLR 3126). The Court finds the defendants have complied with the preliminary conference order, and the plaintiff's demands.

"CPLR 3042 is and remains the core of bill of particulars practice." (Siegel, Supplementary Practice Commentaries, McKinney's Cons Laws of NY, C3042:1). The plaintiff requests preclusion against the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall from giving evidence at the trial regarding the matters for which demands have not been delivered pursuant to CPLR 3042 (c) including the names and addresses of each individual defendant purport to be witnesses to the subject altercation giving rise to this cause of action and the pre-event meeting between the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall supervisors on the day of the event, separately delineating the witnesses in the proper categories. However, the plaintiff does not demand a bill of particulars, so CPLR 3042 does not apply to these circumstances, and the relief sought by the plaintiff is denied. Moreover, the sanction of preclusion requested by the plaintiff on these facts is impermissible because the plaintiff was not shown the defendants World Champion Wrestling, Inc. and Nassau Veterans Memorial Coliseum and Exhibit Hall's alleged omissions were willful or contumacious (see CPLR 3126). [*9]

Accordingly, the motion is denied. So ordered.

Dated: April 25, 2007

E N T E R:

______________________________

J. S. C.