SHORT FORM ORDER
SUPREME COURT OF THE STATE OF NEW YORK
PRESENT: HON.-DANIEL MARTIN
Acting Supreme Court Justice
TRIAL/IAS, PART 39
NASSAU COUNTY
CIVIL SERVICE EMPLOYEES ASSOCIATION,
INC., A.F.S.C.M.E., LOCAL 1000, A.F.L.C.I.O.,
by its LOCAL 880.
Plaintiff.
Sequence No.: 002
Index No.: 001477/99
- against TOWN OF HEMPSTEAD.
Defendant.
The following named papers have been read on this motion:
Notice of Motion and Affidavits Annexed
Order to Show Cause and Affidavits Annexed
Answering Affidavits
Replying Affidavits
Papers Numbered
X
X
X
Motion by plaintiff for an order pursuant to CPLR 3 126 (3) striking out defendants’
Answer for wilfully failing to respond to plaintiffs ’ repeated Notice for Discovery and Inspection
or in the alternative for an order pursuant to CPLR 3 124 compelling discovery and for the
imposition of reasonable attorneys fees and costs, is granted only to the extent herein set forth
and in all other respects is denied.
The movant has failed to serve and file an Affirmation of Good Faith in connection with
this motion relating to disclosure as required by Section 202.7 of the Uniform Rules-Trial
Courts. However, in view of the fact that defendants have not raised the lack of an Affirmation
of Good Faith and in view of repeated service by the moving plaintiffs of the Notice For
Discovery and Inspection, this Court will deem Stephen G. Walko ’s affirmation dated October
17,200O as sufficient compliance.
While defendant’s initial Responses to item “5” of plaintiffs’ Notices for Discovery and
Inspection dated December 15, 1999 and September 21,200O were inadequate, nevertheless
since the plaintiffs’ instant motion was filed, defendant has sufficiently responded to item “5” as
follows:
“There were five signatories - William Landman is deceased; John
Cozelino is retired and it is a violation of his right to privacy to
provide his home address; Rigo Predonzan, serves as Plaintiffs
chief negotiator for collective bargaining negotiations and as such
plaintiff would have access to his current work address; Thomas
Gulotta is the current County Executive of Nassau County; and
August Nielsen was the President of the CSEA at the time of the
signing and Plaintiff should have his address and it would be a
violation of his right to privacy for Defendant to provide his
address. ”
This Court will not require more than the necessity of the discovery demand.
Paragraph 6 of plaintiffs ’ Notices for Discovery and Inspection dated December 15, 1999
and September 21,200O sought the following:
“6. Produce the time sheets or any and all other documents
relating to the hours worked for any and all Stationary Engineers
I’s from January 1, 1983 to date. ”
Defendant responses dated January 28,200O and October 12,200O were as follows:
“6. The documents requested are so voluminous in nature to make
it impractical to produce. Additionally, these documents are
original time cards and as such must be maintained in the care and
custody of Defendant. Defendant shall make them available for
inspection at a mutually convenient time at the facilities of the
Department of Sanitation, 1600 Met-rick Road, Merrick, N.Y.”
While it appears from defendant ’s response that defendant was not denying plaintiff
access to the time cards, nevertheless it appears from the results of plaintiffs
’ attorney ’s visit to
defendant ’s premises that defendant may be cavalierly stonewalling plaintiff from an adequate
and proper inspection of said records. Plaintiffs attorney states in her uncontradicted
affirmation dated October 17,200O in support of this motion, as follows:
“In or about March 2000, your affiant, in an act of good
faith, went to defendant ’s premises to inspect the documents
relating to Paragraph 6. The alleged documents were stored in a
building that was unclean and full with debris. The time cards
were stored in cardboard boxes covered in dust and dirt and in no
particular order. Your affiant, along with a CSEA helper and an
individual from the Town attempted to climb over various debris
to obtain the boxes in order to inspect and copy the necessary
timecards. After a lengthy inspection, your affiant was able to find
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a mere thirty-nine (39) relevant timecards. Your affiant was
unable to canvass all of the boxes available partially because the
boxes were in disarray and in no particular order. ”
Under the circumstances, in order to assure defendant
’s good faith to allow a proper and
adequate inspection of the time records, defendant is directed to move the boxes of time cards for
the period requested from the storage area to a clean office type facility of said defendant and to
place the boxes of time cards in consecutive order from 1983 to the date of the notice of
Discovery and to remove the dust and dirt therefrom and make such available for inspection
and/or copying by plaintiffs and their representatives on January 15, 16 and 17,200l between
the hours of 10 a.m. and 4 p.m. Upon failure to so comply with this Order, the issues to which
the information is relevant shall be deemed resolved for the purposes of this action in accordance
with the claims of the plaintiffs. (CPLR 3126 (1)).
So Ordered.
Dated: December 18,200O
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