Pursuant to CPLR §3126, plaintiff moves for an order striking Defendant's Answer for failure to comply with the court's four previous orders of discovery which were the subject of four previous Orders to Show Cause. Plaintiff also requests a 60 day extension of time in which to file a note of issue in this matter following the resolution of this matter.

On December 17, 2007, the Honorable Jack M. Battaglia issued an Order to Show Cause as to why an Order should not be made and entered:

1.Striking the Answer of the defendant, NEW YORK CITY TRANSIT AUTHORITY (hereinafter referred to as "the Authority" or "the TA"), pursuant to CPLR §3126 for their failure to comply with prior court orders related to discovery, including the most recent conditional order.

2.Extending the plaintiff's time in which to file the Note of Issue for sixty days from the date of the Order resolving this motion.

3.Such other and further relief as may be just, proper and equitable.

The plaintiff now seeks enforcement of Justice Battaglia's conditional order that the New York City Transit Authority's Answer would be stricken on the grounds that the defendant did [*2]not comply with its requirement that TA employees Phillip Speidel and Ken Stricker be produced for an Examination Before Trial (EBT) on or before December 3, 2007.

The underlying action in this case seeks damages arising from an accident which took place on November 4, 1999 when the plaintiff's counsel alleges that plaintiff "was caused to trip/slip and be violently precipitated to the ground by the broken, cracked, raised, defective, and uneven roadway located on Fulton Street at or about its intersection with Jay Street in the County of Kings in and about the westbound lane of Fulton Street approximately twenty to fifty feet east of its intersection with Jay Street." Plaintiff's counsel alleges that while lying in the roadway as a result of the fall, the plaintiff was struck by a bus driven by Transit Authority employee Bruce A. Barksdale, resulting in the plaintiff's death.

The defendant New York City Transit Authority (hereinafter the "TA") filed a Verified Answer on September 8, 2000, in which it denied liability based on the plaintiff's culpable conduct. Plaintiff now moves that the defendant's answer be dismissed pursuant to CPLR § 3126 due to the defendant's failure to comply with its discovery orders.

The plaintiff has requested that the TA produce two witnesses, Carl Stricker and Philip Speidel who allegedly authored letters and memoranda which were forwarded to the City outlining design defects and safety issues at the Fulton Mall in the years prior to the plaintiff's fall. The record indicates the plaintiff's initial request more than 2 years ago for the production of these witnesses, was first denied by the City which informed him that the prospective witnesses were no longer employed by the Transit Authority. The defendant later informed the plaintiff that the two witnesses were current Authority employees and immediately thereafter, the plaintiff sought the appearance of those men for Examinations Before Trial.

Plaintiff complains that following his unsuccessful attempts to gain the cooperation of the Authority, the parties negotiated a discovery order which was approved by Justice Battaglia on March 21, 2007 and which ordered that the TA produce the witnesses for an EBT on or before May 4, 2007. When the TA failed to comply with this order, the plaintiff moved for an Order to Show Cause on June 22, 2007, and three subsequent orders to Show Cause on August 3, 2007, October 24, 2007 and December 17, 2007. The third Order to Show Cause, which was signed by Justice Battaglia on October 24, 2007 directed the TA to produce the witnesses for deposition on or before December 3, 2007 with the condition that if the witnesses were not produced, the Answers of the TA and bus driver Bruce A. Barksdale would be stricken..

Plaintiff has now produced evidence and alleged that on December 7, 2007, four days after the court imposed deadline for the production of the witnesses for an EBT, the plaintiff called the defendant to inform them that he planned to move to enforce Justice Battaglia's conditional order striking the defendant's Answer. Plaintiff alleges that the defendant ignored his telephone calls.

On December 17, 2007, Justice Battaglia conducted a hearing on the matter, at which the defendant was not present. At that time, the plaintiff submitted a Certificate of Good Faith, alleging that he had made reasonable attempts to contact the defendant by telephone in order to obtain her compliance, and later that he had made several attempts to secure the defendant's presence at the hearing December 17, 2007 hearing before Justice Battaglia. Apparently relying thereon, and without opposition from the defendant, Justice Battaglia signed the Order to Show Cause with conditions which is the subject of this decision. [*3]

The return date of the fourth Order to Show Cause was on January 9, 2008 at which time both the defendant and plaintiff's attorneys were present. On that date, the plaintiff requested that this court enforce Justice Battaglia's prior order that the defendant's answer was to be stricken. At the first calendar call, defense counsel was not present and Plaintiff's attorney was asked to wait until the second call. TA counsel was present at the second call and a hearing was subsequently conducted. At that time, defense counsel submitted a written Affirmation in Opposition to the Motion to strike dated January 8, 2008, which argued that there was insufficient basis to strike her Answer because she had made reasonable attempts to comply with the court's October 24, 2007 order within the time permitted. Defense counsel alleged that she had sent the plaintiff a letter on Oct 31, 2007, by regular mail indicating that the two previously missing witnesses were in fact current Transit Authority employees and that they would be produced for EBTs. As soon as the plaintiff called her to schedule a date.

The plaintiff's attorney strenuously denied that he had ever received the letter in question, a copy of which was attached to defendant's opposition to the motion, reasoning that if he had received the defendant's letter in October, he would have had no reason to request the December 17, 2007 Order to Show Cause.

Although this court is reluctant to suggest that a member of the bar may be less than truthful, the court does wonder why the defendant, who allegedly had oral notice that the plaintiff intended to go to Justice Battaglia on December 17, 2007 in order to ask that its Answer be stricken on the basis of non-compliance, apparently made no attempt to inform the court or opposing counsel that it had attempted to comply with the court's order several weeks prior. It also stretches the imagination to believe that the plaintiff would have gone to all of the trouble to file for another order to show cause if the witnesses that he wanted were already available to him.

Regardless of the veracity or lack therof of the defendant, it is uncontroverted that the defendant failed to comply with discovery orders of the court on at least three separate occasions and that the case has been in the discovery phase for several years, due in in no small part to the defendant's failure to comply with the CPLR and the orders of the court.

This Court therefore orders that the plaintiff's motion to strike the Answer of defendant Transit Authority will be stricken pursuant to CPLR §3126, without further order of this court, unless the defendant fully complies with all of the following requirements of this Order:

1. The defendant New York City Transit Authority is to produce employees Phillip Speidel and Ken Stricker to testify at an EBT to be held at a time, date and location acceptable to both parties, but in no event later than 45 days after the date of this Order.

2. That defendant, at that same time and place, and pursuant to CPLR §3126, shall pay to plaintiff's attorney the amount of $2,500 in order to help compensate for the time and effort expended by counsel in obtaining four separate Orders to Show Cause in order to obtain disclosure.

3. That plaintiff's time to file the Note of Issue is extended sixty days from the date of the Order resolving this motion;

This is the decision and order of the court.

Dated: January 22, 2008 [*4]

Enter:

Kenneth C. Holder, J.S.C.