Sloan v 216 Bedford Kings Corp.

Supreme Court, Kings County

Decided on May 7, 2026

Index No. 506287/2018

Aaron D. Maslow, J.

The following numbered papers were used with respect to the determination herein: NYSCEF Document Numbers 572-575, 717, 945-946, 948-957.

I. Introduction

In advance of the trial in this action, Plaintiffs Hilary Sheryl Sloan ("plaintiff Sloan") and Noah Shulman (collectively "the plaintiffs") moved in limine with 11 branches to their motion. [*2]Defendant 216 Bedford Kings Corp. ("the defendant") moved in limine with 30 branches to its motion. At a pre-trial conference on May 1, 2026, the parties withdrew certain branches of their motions. This decision and order determines Branch No. 19 of the defendant's motion, which seeks to preclude the plaintiffs from calling as witnesses Marni Leigh Schapiro and Elizabeth Eisenberg, fellow employees of plaintiff Sloan.^FN1

II. Background

On January 10, 2018, plaintiff Sloan was allegedly injured when she slipped and fell on a patch of ice while walking on the sidewalk abutting 216 Bedford Avenue in Brooklyn. The defendant 216 Bedford Kings Corp. was the owner of the property at that address. As a result, plaintiff Sloan claims injuries to her left wrist, left shoulder, and left arm. Most notably, plaintiff Sloan claims a comminuted fracture of the distal left humerus that required multiple surgeries and resulted in associated nerve pain, neuropathy, and Complex Regional Pain Syndrome. Plaintiff Sloan treated extensively with various physicians in the years following the accident and, to date, she claims to have undergone ten surgeries as a result of the accident. Asserting economic damages (both past and future) totaling $25,956,905.00 and past and future damages for pain and suffering, plaintiff Sloan alleges that permanent disability prevents her from working. Plaintiff Noah Shulman, husband of plaintiff Sloan, sues derivatively for loss of consortium and services.

III. The Defendant's Contentions

In moving to preclude the testimony of Marni Leigh Schapiro and Elizabeth Eisenberg, the defendant claims that the plaintiffs have flouted the mandate of disclosing "all matter material and necessary in the prosecution or defense of an action" (CPLR 3101 [a]), in that latter failed to provide "these witnesses' 'contact information and requested communications' " (NYSCEF Doc No. 946 at 13). "Schapiro was Plaintiff Sloan's manager at AfterPay, while Eisenberg was her coworker at After[P]ay. The notice did not provide contact details for either witness—basic information to which 216 Bedford is entitled." (Id.)

The Defendant notes that on September 25, 2025, it served a notice for discovery and inspection "requesting: (a) 'all emails, texts, or other written communication between plaintiff, Noah Shulman, and Marni Leigh Schapiro from the date of this accident the present date'; and (b) 'all emails, texts, or other written communication between plaintiffs' [vocational/life-care] expert Daniel Wolstein, PhD and Marni Leigh Schapiro from the date of this accident [to] the present date[ ]' (NYSCEF Doc. No. 572)" (NYSCEF Doc No. 946 at 14), which the plaintiffs failed to produce.

IV. The Plaintiffs' Contentions

The plaintiffs accuse the defendant of again relitigating discovery. "Of note, Ms. Schapiro was subpoenaed on notice to all parties for a non-party deposition (the subpoena gave her contact information). Ms. Eisenberg was also identified. Again, Plaintiff has provided court-ordered discovery and is in compliance with same. Plaintiff has already provided notice that these witnesses were to be called in our first trial notice served on August 23, 2025. See EXHIBIT '2' attached hereto. Please also see notice of subpoena served on August 27, 2025 with a deposition scheduled for September 30, 2025 and the address of Marni Schapiro attached hereto at EXHIBIT '3'." (NYSCEF Doc No. 948 ¶ 54.)

V. Discussion

(A) Relevant Disclosure

The plaintiffs' Exhibit 2 is a notice of intention for Trial and Demand for Trial Evidence dated August 23, 2025. It was first posted by the plaintiffs' counsel to NYSCEF on August 27, 2025 as NYSCEF Doc No. 572. The notice contains a comprehensive list of witnesses, photos, description of other evidence, Dropbox location for medical records and reports, photos, and other material, list of business records to be introduced, trial authorizations, and subpoenas. Both Ms. Schapiro and Ms. Eisenberg are included in the list of witnesses as "Plaintiff's current and former employers and coworker" (NYSCEF Doc. 950 at 1). Additionally, Ms. Eisenberg is listed under "Loss Wage and Liens" in connection with the list of business records to be introduced: "40. Compensation Package for co-worker, Elizabeth Eisenberg. (see omnibus exchange)" (id. at 6). Exhibit 3 (NYSCEF Doc No. 951) does indeed contain the subpoena dated August 27, 2025 to Ms. Eisenberg, at her California address, for her video deposition on September 30, 2025, along with the notice to opposing counsel of the subpoena. This was [*3]originally uploaded to NYSCEF on August 27, 2025 as NYSCEF Doc No. 573.

It is noted by the Court that in a notice of rejection date August 27, 2025 (NYSCEF Doc No. 574), the defendants' counsel objected to the report and disclosure concerning Drs. Debra Dwyer and Alan Leiken, economists, yet there was no objection regarding Ms. Schapiro or Ms. Eisenberg. It appears, however, that the plaintiff's serving the aforesaid disclosure triggered the defendants' moving on August 28, 2025 by order to show cause to vacate the note of issue and statement of readiness filed April 12, 2023, adjourn the trial from October 21, 2025, compel further disclosure, and preclude certain evidence. (The order to show cause motion concerned other matters too.) The defendant's counsel's affirmation included "Non-party witness deposition of witnesses plaintiff detailed in Trial Notice dated August 23, 2025, namely: Marni Leigh Schapiro, and Elizabeth Eisenberg" in a list of 12 items the defendant requested in discovery.

In his October 29, 2025 order (NYSCEF Doc No. 717), Hon. Kenneth P. Sherman, sitting in JCP, insofar as is relevant to the issue of co-worker/employer testimony, directed plaintiff Sloan to provide complete employment authorizations for the companies where she was employed, Block and AfterPay by November 15, 2025. The parties were to appear for jury selection on April 8, 2026, marked final. An authorization from plaintiff Sloan for "Complete Employment Records Including Compensation Package," dated August 23, 2025, appears as NYSCEF Doc No. 723.

(B) Statutory and Case Law

"There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by: (1) a party . . ." (CPLR 3101 [a]).

"Within 20 days after service of a note of issue and certificate of readiness, any party to the action or special proceeding may move to vacate the note of issue, upon affidavit showing in what respects the case is not ready for trial, and the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect" (22 NYCRR § 202.21 [e]).

"The Supreme Court properly denied that branch of the defendants' motion which was to vacate the note of issue four months after it had been served" (Bundhoo v Wendy's, 152 AD3d 734, 737 [2d Dept 2017]).

A discovery order constitutes law of the case (see Ordonez v Guerra, 295 AD2d 325, 328 [2d Dept 2002]), although a court may disregard it in extraordinary circumstances (see Andrea v E.I. Du Pont Nemours & Co., 289 AD2d 1039, 1041 [2d Dept 2001]). Nonetheless, it has been held:

While an evidentiary ruling made before trial is generally reviewable only in connection with an appeal from the judgment rendered after trial (Weatherbee Constr. Corp. v Miele, [*4]270 AD2d 182 [2000]), it was error for the motion court to preclude defendant from re-raising the evidentiary issues before the trial court. A motion court's evidentiary ruling before trial does not foreclose a related application to the trial court, which is always empowered to determine whether an expert is qualified to testify (see De Long v County of Erie, 60 NY2d 296, 307 [1983]), and whether a proper foundation exists for the expert's testimony (see generally Caton v Doug Urban Constr. Co., 65 NY2d 909, 911 [1985]; see also Hassett v Long Is. R.R. Co., 6 Misc 3d 168 [2004]).(Kelly v Metro-North Commuter R.R., 74 AD3d 483, 485 [1st Dept 2010].)

One cannot claim to be prejudiced by its own failure to pursue discovery (see New Empire Bldr. Corp. v Onboard Hospitality LLC, 247 AD3d 504, 505 [1st Dept 2026]). "We note that defendants failed to pursue discovery for some nine months after the summons and complaint were served so that they failed to ascertain relevant facts in a timely fashion. Thus, defendants cannot claim that plaintiff has exclusive knowledge (see, Twining, Nemia & Hill v Read Mem. Hosp., 89 AD2d 432, 434)." (Buffalo Structural Steel Corp. v Elsand Steel, 159 AD2d 849, 850 [3d Dept 1990].)

(C) Application of Case Law

In reviewing the history of this case prior to determining Motion Sequence No. 26 (see supra at 1 n 1), and in the course of issuing previous orders-decisions concerning the parties' motions in limine, it became apparent to the Court that the defendant was lax in pursuing discovery from the plaintiffs during the pre-note of issue stretch of time. This resulted in a scramble to obtain discovery after the plaintiffs filed the note of issue and the issuance of orders determining the defendant's motions which the latter was disappointed with. And even when the defendant moved to strike the note of issue they did so two years and four months after the note of issue was filed. That being the situation, to the extent that discovery was first exchanged in 2025, the defendant's efforts to seek redress were previously rejected by the Supreme Court.

With such a delay in pursuing its rights regarding discovery, it ill behooves the defendant to move in limine now, to preclude testimony from the two fellow employees/employer. The defendant was provided an authorization to obtain plaintiff Sloan's relevant employment information, and it could have itself subpoenaed these witnesses for depositions or otherwise pursued discovery in relation to the topics to be covered at trial. The failure by the defendant to conduct timely discovery inures to its detriment (see New Empire Bldr. Corp. v Onboard Hospitality LLC, 247 AD3d at 505; Buffalo Structural Steel Corp. v Elsand Steel, 159 AD2d at 850).

Justice Sherman dealt with the issue of discovery pertaining to plaintiff Sloan's employment and his determination constitutes law of the case (see Ordonez v Guerra, 295 AD2d at 328).

The Court perceives no valid rationale upon which to preclude Marni Leigh Schapiro and Elizabeth Eisenberg from testifying for the plaintiffs.

VI. Conclusion

Accordingly, it is hereby ORDERED that the branch of the defendant's motion in limine seeking to preclude the plaintiffs from calling Marni Leigh Schapiro and Elizabeth Eisenberg as witnesses is DENIED.