The motion and two cross-motions are consolidated for purposes of decision.

Defendant/third-party plaintiff Judlau Contracting, Inc. moves pursuant to CPLR 3126 to strike the answer of third-party defendant Consolidated Edison Company of New York, Inc., or alternatively to compel Con Ed pursuant to CPLR 3124 to respond to Judlau's notice of discovery and inspection of November 3, 2006.

Third-party defendant Con Ed cross-moves to dismiss the third-party complaint based upon its failure to state a cause of action (CPLR 3211 [a] [7]).

Plaintiff Pagliaro cross-moves to strike the answer of Judlau pursuant to CPLR 3216 (3), or alternatively, to preclude Judlau pursuant to CPLR 3126 (2) from introducing evidence at trial concerning any other party responsible for the defective portion of the roadway on which plaintiff fell on January 31, 2003, or alternatively, to vacate the December 29, 2005 decision and order issued by another justice of this court, which granted summary judgment and dismissal of the complaint as against the then-direct defendant, Con Edison, and to reinstate plaintiff's claims against Con Ed, pursuant to CPLR 5015 (a) (3) and (5).

On January 31, 2003, plaintiff was injured when he stepped into "an indentation in the tar" with his left foot while traversing a crosswalk located at the northeast intersection of Williams Street and Pine Street, in New York County, specifically at about three feet west of the northeast corner of the intersection (Not. of Mot. Ex. A, Ver. Compl. ¶¶ 21, 22; Con Ed Cross-Mot. Ex. B, Pagliaro EBT 5/14/2004, at 16:20-21). He commenced his suit for personal injuries in about May 2003.

The parties undertook disclosure. In sum, disclosure revealed that the City of New York contracted with Judlau to replace the water mains in downtown Manhattan. This work at times involved moving or replacing a utility owned by Con Edison or Empire City Subway (Fishman Aff. in Opp. to Pl. Cross-Mot. Ex. C, Iovino EBT 10/5/2004, at 52). The project continued over the course of several years. In July 2002, among other work, Judlau opened a trench so as to install a new 12-inch water main in the area of the intersection of Pine and Williams. Judlau opened the trench, stripped the roadway, dug down to the water main, installed a new main, backfilled the trench and applied temporary asphalt (Con Ed Cross-Mot. Ex. D, Iovino EBT 3/16/2005, at 23-24, 26; see also, Fishman Aff. in Opp. to Pl. Cross-Mot. Ex. C, Iovino EBT 10/5/2004, at 11, 12, 13). At the location of this particular trench, Con Ed had to replace a gas line so as to make room for the water main; this work was completed before November 14, 2002, because by that date, Judlau had backfilled and laid asphalt over the trench (Con Ed Cross-Mot. Ex. D, Iovino EBT 3/16/2005, 42-46). Judlau was also responsible for doing the permanent street restoration (Con Ed Cross-Mot. Ex. D, Iovino EBT 3/16/2005, 30-31; Fishman Aff. in Opp. to Pl. Cross-Mot. Ex. C, Iovino EBT 10/4/2004, 14).

The City temporarily suspended the work as of November 14, 2002, and work did not resume in the area until some time in January 2003. Judlau was not at the location after [*2]November 14, 2002, and it is unclear when Judlau returned to the site to complete its work in January 2003 (Con Ed Cross-Mot. Ex. D, Iovino EBT 3/16/2005, 46).

Plaintiff filed his Note of Issue on June 10, 2005, certifying that discovery was complete and the matter ready for trial (Pl. Cross-Mot. Ex. H). Con Ed, among other defendants, moved for summary judgment and dismissal of the complaint pursuant to CPLR 3212.^[FN1] Con Ed's motion was premised in part on the testimony of its records witness, Mario Smith, whose search for work records concerning the intersection of William and Pine for the two-year period before the accident, including work records of Con Ed subcontractors, turned up no evidence of work at the location (Pl. Cross-Mot. Ex. J, Fox Affirmation, unnumbered p. 2). Judlau's witness, Michael Iovino, gave testimony which in plaintiff's belief supported Con Ed's argument that Con Ed did no work at the location (Pl. Cross-Mot. Hurwitz Aff. ¶ 8, citing Ex. I, Iovino EBT, 3/16/2005, 17).^[FN2] Based on the testimony and the lack of documents showing that any of the moving defendants worked at the location, plaintiff did not oppose the dispositive motions, and on December 29, 2005, summary judgment and dismissal was granted to Con Ed and the other three movants (Pl. Cross-Mot. Ex. K [Aff. of No. Opp., Aug. 19, 2005]; Ex. L [Order (Ling-Cohan, J.S.C.)]). As a result of the dismissal, Judlau's cross-claims against Con Ed for contribution and common-law indemnification were also dismissed.

Judlau separately moved for summary judgment and dismissal of the complaint on about May 20, 2006 (Pl. Cross-Mot. Hurwitz Aff. ¶ 12). Its motion was denied in October 2006 by a different justice of this court (Pl. Cross-Mot. Ex. N, Dec. & Ord., Oct. 4, 2006, p. 6 [Shafer, J.]).

Prior to the denial of Judlau's motion for summary judgment, Judlau commenced in September 2006 a third-party action against Con Ed and Felix Equities, Inc. (Judlau Mot. Ex. C, Third-Party Compl.). Its claims against Con Ed are for contractual indemnification and failure to procure insurance; its claim against Felix is for contribution.^[FN3] The third-party complaint alleges that on about March 15, 2000, Con Ed entered into an agreement with Judlau in which Judlau agreed to allow Con Ed to perform certain capital work within the limits of Judlau's water main project (Third-Party Compl. ¶ 4). The agreement allowed Con Ed to use "its area contractor," Felix, to perform its capital work, including in the area of the northeast corner of the intersection [*3]of the roadway at William and Pine Streets (Third-Party Comal. ¶¶ 5-8). Felix excavated and then backfilled a trench along William Street near the intersection of William and Pine (Third-Party Comal. ¶¶ 16-17).

Plaintiff moved to sever the third-party action which was granted on May 29, 2007 (Pl. Cross-Mot. Ex. T). Pending at the time of that decision was Judlau's instant motion to strike the third-party answer of Con Ed. Subsequently the two instant cross-motions were filed and served and the matter was fully submitted to the court.

Judlau's Motion to Strike or to Compel

Judlau's November 3, 2006 notice for discovery and inspection seeks, among other items, production of the March 15, 2000 agreement between Con Ed and Judlau; all documents concerning Con Ed's request that Felix perform work for Con Ed prior to January 31, 2003 at the intersection of William and Pine streets, and payments therefor; documents concerning the replacement of a Con Ed gas main beneath the roadway of the intersection of William and Pine; and any documents identifying the location of Con Ed gas lines and other facilities in the area (Judlau Mot. Ex. F). Judlau served a notice for discovery and inspection upon Con Ed in November 2006 and followed up with a March 19, 2007 letter. Con Ed has never responded.

Judlau argues that it now has certain "recently located" "financial documents" which pertain to "Felix's potential work at the location of plaintiff's alleged accident"(Fishman Aff. in Opp. to Pl. Cross-Mot. ¶ 8). It also points to the two other documents that it proffered as part of its opposition to plaintiff's 2007 motion to sever which, Judlau claims, also point to Felix's working for Con Ed at the site of plaintiff's accident (Con Ed Cross-Mot. Ex. E [NYC Dept. of Design and Construction record, dated May 25, 2002, noting that at "William Street & Intersection of Pine Street . . . Contractor [Judlau] excavated extra depth & removed all abandon Con Ed facilities (Felix crew)"; and NYC Dept. of Design & Construction record dated July 22, 2002, stating that Judlau installed Con Ed ducts and backfilled on William Street, as well as recycled dirt between Cedar and Pine streets, with a diagram of the ducts at William and Cedar streets.]).

The newest documents proffered by Judlau are invoices dated from November 20, 2002 to March 10, 2004, prepared by Judlau to Con Ed for work undertaken by Judlau (Fishman Aff. in Opp. to Cross-Mots. Ex. C), and a copy of a March15, 2000 Letter Agreement between Con Ed and Judlau's Michael Iovino (Fishman Aff. in Opp. to Cross-Mots. Ex. A). In addition, Judlau submits a new affidavit by Michael Iovino dated July 31, 2007, which explains that the agreement allows Felix, Con Ed's contractor, to perform certain Con Ed capital improvement work within the Judlau contract area (Fishman Aff. in Opp. to Cross-Mots. ¶ 12; Iovino Aff. ¶¶ 2, 3). Iovino hypothesizes that a daily report from November 14, 2002, showing that Judlau performed temporary paving of a Felix trench on Pine between William and Nassau, and restored Con Ed ducts on William between Pine and Cedar, but without mention of backfilling and asphalt work, tends to suggest that the openings were temporarily filled by Felix (Fishman Aff. in Opp. to Pl. Cross-Mot., Iovino Aff. ¶ 13).

In support of the branch of its motion to compel, Judlau points to the September 2004 testimony of the Con Ed witness that he was told to search for work records pertaining to the northwest corner of the intersection of William and Pine streets, and found no records (Con Ed Cross-Mot. Ex. C, Smith EBT at 6), but that plaintiff's accident occurred near the northeast [*4]corner of the intersection of William and Pine.^[FN4] Thus, Judlau argues that Con Ed should be compelled to do an additional search for documents that would reveal the scope and nature of Felix's work. Judlau argues that it will be severely prejudiced at trial unless Con Ed is either compelled to respond or its third-party answer is stricken.

Con Ed's Cross-Motion to Strike

Con Ed argues that it produced its work records and two witnesses several years ago, and that those records and testimony did not show that Con Ed or its contractor was responsible for the street paving work at the location in question. It contends that what Judlau seeks now are the same records which will show nothing different. It argues that it is the law of the case that Con Ed was not negligent in connection with plaintiff's injury, and therefore that Judlau's third-party complaint seeking indemnification does not state a cause of action.

As to the "new" records proffered by Judlau, Con Ed argues that they do not change the determination that neither it nor Felix was responsible for street repair at the area in question. It contends that these documents do not contradict the earlier finding that Judlau was the party responsible for backfilling and asphalting the trench, nor do they show that specific work was done in the accident site after Judlau stopped work on November 14, 2002. Con Ed also contends there are no opening tickets indicating that Con Ed or Felix required an excavation, and no openings made by Con Ed or Felix at the accident location (Con Ed. Cross-Mot. Fox Aff. unnumbered p. 4).

Con Ed concedes that there is evidence that Con Ed, through Felix, performed work in Judlau's trenches, but argues that the evidence shows that Judlau was the party that paved and restored the roadways and trenches involved. It argues, without pointing to a specific document or testimony, that Felix was not responsible for doing the street restoration and that nothing shows that it disturbed the roadway after Judlau stopped working in November 2002. Con Ed concludes that it cannot be bound contractually to indemnify Judlau as there is no finding of Con Ed's negligence, and that dismissal of the third-party complaint is appropriate (Fox Reply Aff. 9/4/07, unnumbered p. 3).

Plaintiff's Cross-Motion to Strike, Preclude or Vacate

As pointed out by Judlau's attorney, who incorrectly moved for relief under the index number of the main action rather than the third-party index number,^[FN5] plaintiff's cross-motion is improper in that he seeks to strike Judlau's answer in the main action, rather than cross-moving based on the third-party action. In the interest of not further delaying this case, the procedural errors are noted and and deemed waived, in particular as neither party timely objected (CPLR 2101 [f]).

Plaintiff's cross-motion argues in essence that Judlau has not complied with the spirit or [*5]the rule of CPLR Article 31 and should be sanctioned. He argues that he is now prejudiced in pursuing his litigation because, based on the testimony and documents originally exchanged during discovery, he did not oppose Con Ed's motion for summary judgment, but now Judlau has come forth with documents that may implicate Con Ed as having worked in the area after November 14, 2002. He notes that Judlau's only argument in its May 2006 motion to dismiss the complaint, was that it had not done any work in the location where plaintiff fell, and that Judlau never argued before now that another entity may have done work in the area (Pl. Cross-Mot. Hurwitz Aff. ¶ 28). He points out that his argument has always been that the roadway's backfilling and paving was defective, and notes that the evidence all points to Judlau's having done that work. Judlau did not oppose Con Ed's motion for summary judgment and dismissal of the complaint and cross-claims, and never moved to renew or reargue that decision. Plaintiff argues that Judlau should be precluded from arguing that any other entity was responsible for the street work.

CPLR 3101 requires "full disclosure." Parties are required to amend or supplement responses given to a disclosure request "promptly" when the party has obtained information that the response was incomplete or incorrect, or no longer correct (CPLR 3101 [h]). Contrary to Judlau's argument that the documents were not requested, the "project file" was specifically requested after Iovino testified to its existence in October 2004 (see Pl. Cross-Mot. Ex. G, ¶ 5), which presumably should have lead to Judlau's timely production of the documents only recently revealed, namely the contract between Con Ed and Judlau, and Judlau's invoices to Con Ed, concerning the work done during the water main project.^[FN6] However, Judlau found them only after conducting "further internal investigation." Why they were not searched for and found at the time they were first requested remains unclear. It is also unclear whether Judlau, when it found them, timely turned them over to the other litigants as part of its ongoing responsibility to produce (CPLR 3101 [h]). Judlau's conduct suggests that internal documents were produced only when it decided to actively prosecute the third-party action and defend itself in the main action.

Judlau's witness, Iovino, testified in 2004 that he was not asked to, and did not conduct a search for any Judlau records prior to his deposition, and did not review anything other than some photographs (Fishman Aff. in Opp. to Pl. Cross-Mot. Ex. C, Iovino EBT 10/4/2004, 32-33). In his July 31, 2007 affidavit, Iovino includes as an attachment a photograph taken by Iovino himself in "about the fall of 2002" showing the area at issue (Fishman Aff. in Opp. to Cross-Mots., Iovino Aff. ¶ 7; Ex. B). However, Iovino testified in October 2004 that he did not recall if any photographs of the project were taken (Fishman Aff. in Opp. to. Pl. Cross-Mot. Ex. C, Iovino EBT 10/5/2004 at 9). Again, it appears that Judlau only undertook a full search for and assessment of its documentary evidence after it became necessary to protect its interests.

CPLR 3126 provides that any party who refuses to obey a disclosure order or wilfully fails to disclose information which it was obligated to disclose under the statute, may be subject to court order deeming the issues to which the information is relevant to be resolved in accord [*6]with the party making the motion, or prohibiting the recalcitrant party from making particular defenses or claims, or from producing certain evidence, or striking pleadings or parts of pleadings (see, e.g., Kihl v Pfeffer, 94 NY2d 118, 123 [1999] ["a court may make such orders as are just,' including dismissal of an action"]). Here, Judlau has produced documentary evidence long after the note of issue was filed, and after several of the defendants have been dismissed from the litigation pursuant to CPLR 3212. These documents are an apparent attempt to change Judlau's theory of its defense/third-party claim, from "did not work at the location," to "we did work at the location but so did other entities."

Given the history of this litigation, and noting that summary judgment was granted to Con Ed, and that Judlau has only produced documents piecemeal and seemingly for its own benefit, Judlau's motion to strike the answer of third-party defendant Con Ed is denied. Its motion in the alternative to compel Con Ed to respond to its notice of discovery and inspection is denied. The cross-motion by third-party defendant Con Ed to dismiss the third-party complaint is granted as against it, for failure to state a viable cause of action.

The branch of Plaintiff's cross-motion seeking to preclude Judlau pursuant to CPLR 3126 (2) from introducing evidence at trial concerning any other party responsible for the defective portion of the roadway on which plaintiff fell on January 31, 2003, is granted, and his two alternative cross-motions to strike or to vacate, are denied as academic.

It is

ORDERED that the motion by motion by defendant/third-party plaintiff Judlau Contracting, Inc. to strike the answer of third-party defendant Consolidated Edison Company of New York, Inc., is denied, and its motion in the alternative to compel Con Ed to respond to its notice of discovery and inspection is also denied; and it is further

ORDERED that the cross-motion by third-party defendant Con Ed to dismiss the third-party complaint is granted as against it; and it is further

ORDERED that the cross-motion by Plaintiff Michael Pagliaro seeking to preclude defendant Judlau from introducing evidence at trial concerning any other party responsible for the defective portion of the roadway on which plaintiff fell on January 31, 2003, is granted, and the two alternative cross-motions to strike or to vacate, are denied as academic.

This constitutes the decision and order of the court.

Dated: Feb. 25, 2008____________________________________

New York, New YorkJ.S.C.