Supreme Court, New York County, July 28, 2020

Pillinger Miller Tarallo LLP, Elmsford (Janine J. Wong of counsel), Segal McCambridge Singer & Mahoney, Ltd., New York City (Mary E. Adams and Christian H. Gannon of counsel), and[*2]Maron Marvel Bradley Anderson & Tardy LLC, Jersey City, New Jersey (Simon Lee of counsel), for Port Authority of New York & New Jersey and others, defendants.

Donovan Hatem LLP, New York City (Scott K. Winikow, Lauren M. Ippolito and Jonathan Paul Sellers of counsel), for CH2M Hill New York, Inc., defendant.

Biedermann Hoenig Semprevivo, P.C., New York City (Sara Elizabeth Thompson of counsel), for TUV Rheinland Mobility, Inc., defendant.

Pillinger Miller Tarallo LLP, Elmsford (Janine J. Wong of counsel), for D/A Builders, LLC, defendant.

Hofmann & Schweitzer, New York City (Paul Thomas Hofmann of counsel), for plaintiffs.

By the instant motion (NY St Cts Elec Filing [NYSCEF] Doc No. 148, seq No. 005), defendants Port Authority of New York & New Jersey, Port Authority Trans Hudson Corporation, Siemens Industry, Inc., Aldridge Electric, Inc. and D/A Builders, LLC (collectively, defendants; five of the seven named defendants in this action) seek an order, pursuant to CPLR 2221 (d), to allow their reargument of the prior motion for discovery pursuant to CPLR 3126 (seq No. 004) by plaintiffs Christopher Havison and Michelle Havison (collectively, plaintiffs; husband was physically injured while working at the job site and wife claims loss of society and consortium due to husband's injury), which resulted in the prior order and decision of this court dated December 20, 2019 (Havison v Port Auth. of N.Y. & N.J., 2019 NY Slip Op 34030[U] [Sup Ct, NY County 2019]; NYSCEF Doc No. 145, prior decision), granting in part and denying in part plaintiffs' prior motion. Specifically, in the prior decision, this court granted that portion of plaintiffs' motion seeking to compel defendants' responses to plaintiffs' supplemental demand dated August 5, 2019, and directed defendants to provide specific responsive documents, as well as denied that portion of plaintiffs' motion seeking to strike defendants' answer or to preclude them from offering evidence at trial relative to their liability in this action.

On a motion to reargue, the motion must be "based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221 [d] [2]). The motion to reargue is addressed to the court's sound discretion, and reargument is neither designed to afford the unsuccessful party a new opportunity to reargue issues previously decided nor to present arguments different from those originally asserted by such party (William P. Pahl Equip. Corp. v [*3]Kassis, 182 AD2d 22, 26-27 [1st Dept 1992]).{**69 Misc 3d at 346}

In the instant motion, the two documents at issue are: (1) the postaccident root cause analysis prepared by defendants' safety director of the events surrounding plaintiff's injury at the construction job site; and (2) the postaccident safety meeting notes following the "Daidone Aldridge root cause investigation" into plaintiff's injury. In their moving brief in support of the motion (NYSCEF Doc No. 149, defendants' brief), defendants argue that this court, in the prior decision, "overlooked and misapprehended matters of law by ordering Defendants to disclose post-accident investigative materials" (defendants' brief ¶ 8). They also argue that it is "well settled as a matter of public policy that evidence of subsequent remedial measures are not discoverable or admissible in a negligence case" (id. ¶¶ 12-13 [emphasis omitted] [citing various cases]).

A relatively recent decision analyzing the discoverability or admissibility of records of postaccident repairs or remedial measures was discussed in Cochin v Metropolitan Tr. Auth. (2015 NY Slip Op 32950[U] [Sup Ct, NY County 2015], affd 140 AD3d 557 [1st Dept 2016]). In Cochin, plaintiff sought discovery of defendant's records of maintenance and repair of the subject bus doors not only for the preaccident period, but also for the six-month period after the accident (id. at *1-2). Defendants objected, arguing that the postaccident records were irrelevant and not discoverable (id.). The trial court stated that, while evidence of subsequent repairs is generally not discoverable or admissible, there are several exceptions: (1) where there is "an issue of maintenance or control"; (2) where the discovery sought is to "show that a particular condition was dangerous"; (3) where the "defective condition on the date of the alleged occurrence could not otherwise be proven"; and (4) where the discovery sought is to "ascertain the condition of the instrumentality that allegedly caused the plaintiff's injuries, prior to any admitted subsequent modifications" (id. [citations omitted]). Observing that the last two exceptions applied to the case and the existence of a mechanical defect in the bus doors might only be discovered after their postaccident repair, the court concluded that "[t]he discovery sought [by plaintiff] is therefore reasonably calculated to lead to admissible evidence that could either prove or rule out the existence of a mechanical defect" (id. at *3). Thus, the trial court granted plaintiff's motion to compel the production of postaccident records (id.). On appeal, the First Department affirmed, "for the reasons stated" in the trial court decision (140 AD3d at 557; see{**69 Misc 3d at 347} also Francklin v New York El. Co., Inc., 38 AD3d 329, 329 [1st Dept 2007] [appellate court upheld trial court's decision made after an in camera inspection of the relevant records, which directed defendants to produce records of postaccident repair, "subject to the proviso that they are not to be introduced at trial except upon a showing of relevance to the condition of the elevator at the time of the accident, and only if introduced in a way that does not reveal that repairs were made"]; Longo v Armor El. Co., 278 AD2d 127, 129 [1st Dept 2000] [defendant directed to produce documents related to prior and subsequent "similar accidents," as well as postaccident repairs or modifications]).

Notably, the words "material and necessary" used in CPLR 3101 (a) must be "interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity" (Matter of Kapon v Koch, 23 NY3d 32, 38 [2014] [internal quotation marks and citation omitted]). Also, CPLR 3101 (g) (titled "[a]ccident reports") states, in relevant part, that "there shall be full disclosure of any written report of an accident prepared in the regular course of business operations or practices of any person, firm . . . or other public or private entity."

In their reply (NYSCEF Doc No. 157, defendants' reply), defendants assert that they have given to [*4]plaintiffs the accident report at the outset of the case, as required by CPLR 3101 (g); but because the subject two documents sought by plaintiffs are records that were prepared after his injury "for the purpose of investigation, root cause analysis and remediation of means and methods," these documents are not discoverable under "well-established caselaw" (defendants' reply ¶ 5). The argument is unavailing, as shown in the First Department decisions discussed above. Also, without analyzing the exceptions enumerated in Cochin and why such exceptions do not apply in the instant action, defendants flatly assert in a conclusory manner that "none of these exceptions apply to the present case, as there is no dispute concerning the accident or how it occurred" (id. ¶ 11). While the parties do not point to any case law discussing who bears the burden of proof for the absence of any applicable exception, it is well-established that, for a motion seeking leave to reargue pursuant to CPLR 2221 (d), the burden rests upon the movant to show that "the court overlooked or misapprehended the facts or the law or for some reason{**69 Misc 3d at 348} mistakenly arrived at its earlier decision" (Kassis, 182 AD2d at 27). Here, defendants have not sustained their burden of proof in showing that this court overlooked or misapprehended the law in the prior decision, as they also concede that, in the event this court determines that the subject documents are discoverable, they "respectfully request an in camera review of same before any records pursuant to this request are disclosed" (defendants' reply ¶ 15).

In light of the foregoing, it is hereby ordered that defendants' motion seeking leave for reargument (seq No. 005) is denied, and defendants are directed to submit the documents at issue to this court for an in camera review (along with redacted versions of the same to plaintiffs for the time being), within fifteen business days after entry of this order and decision.