Ck;J
SHORT FORM ORDER
SUPREME COURT - STATE OF NEW YORK
COUNTY OF NASSAU
Present:
Hon. Thomas Feinman
Justice
JUDY DUV A , as Administratrix of the Estate of
CHRISTIAN J. DUV A , Deceased
TRIAL/IS PART 20
NASSAU COUNTY
INDEX NO. 4492/06
Plaintiff
MOTION SUBMISSION
DATE: 6/26/09
- against -
METRO DRUGS gTH STREET CORP. d//a
METRO DRUGS, and HECTOR FERRR
MOTION SEQUENCE
NOS. 4 , 5
Defendants.
The following papers read on this motion:
Notices of Motions and Affidavits.............................
Notices of Cross- Motions and Affidavits..................
Affirmation in Opposition.........................................
Reply Affirmations.... ............. ....................................
gth Street Corp. d//a Metro Drugs , (hereinafter referred to as
The defendant , Metro Drugs
Metro Drugs ), moves for an order pursuant to 202.21 ofthe Uniform Rules of the Trial Cours to
strike this action from the calendar on the ground that the Certificate of Readiness is deficient and
incorrect , or alternatively, reserving the defendant' s right to complete all necessar or proper
preliminar proceedings. The defendant, Hector Ferrer , (hereinafter referred to as " Ferrer ), moves
for an order striking plaintiffs Note of Issue upon the ground that the action is not ready for tral
or in the alternative , reserving the defendant's right to complete all necessar and proper preliminar
proceedings. The plaintiff submits opposition to Metro Drugs ' and Ferrer s motions. Metro Drugs
and Ferrer submit reply affirmations.
The plaintiff cross-moves for a protective order pursuant to CPLR
31 03 denying or limiting
Metro Drugs ' Notice for Discovery and Inspection dated June 19 , 200g upon the ground that said
demands are overly broad and/or request information that is not material or necessar in the defense
of this action. Metro Drugs submits opposition.
The plaintiff initiated this wrongful death action as a result of an incident that occured on
Metro
March 16 2005 at 13 East 18 Street , New York , New York , at the premises known as "
,
was
pushed
by
the
Drugs . The plaintiff claims that the deceased plaintiff, Christian J. Duva
defendant , Ferrer , employed by Metro Drugs as a security guard, causing the deceased plaintiff to
hit his head. The plaintiff claims that the deceased plaintiff sustained severe injuries resulting in his
death on March 18 , 2005.
The plaintiff argues that Metro Drug s Notice for Discovery and Inspection is overly broad
the
and not material or necessar in the defense ofthis action. However , the plaintiffs claim that
,
and
,
Chrstian
J.
Duva
plaintiff, Judy Duva, has a pecuniar loss as a result ofthe death of her son
the items requested by the defendant are material or necessar in the defense of such claim , and are
not overly broad. The measure of pecuniary loss is complex and may take into consideration the
decedent's working habits , present position and advancement and responsibility, increased earing
v. Millgan 47 AD2d 773).
(Tenczar
capacity and life expectancy ofthe decedent and his surivors.
Any proof as to age , sex , health , intelligence , habits , earing capacity, life expectancy and the like
v.
Corbin Avenue Bus Co. 60 AD2d 824).
(Freeman
is competent unless prohibited by statute.
Here , plaintiff has not asserted that the requested material is prohibited by statute.
There shall be full disclosure of all matter material and necessar in the prosecution or
defense of an action , regardless of the burden of proof, by a par or a person who possesses a cause
of action. (CPLR ~3101(a)(I)(2)). The Court of Appeals held that the statute providing that there
shall be full disclosure of all evidence material and necessar in prosecution or defense of an action
regardless of the burden of proof, requires disclosure , upon request of any facts bearing on the
controversy which wil assist preparation for trial by sharening the issues and reducing delay and
288 NYS2d 449). The purose
v.
Crowell- Coller Publishing Company,
prolixity. (Allen
trth and accelerate disposition of
ascertain
disclosure proceedings is to advance fuction oftrial to
suits, and the statute providing for disclosure should be construed broadly to effectuate this purose
(ld).
Under the statute requiring full disclosure of all evidence material and necessar in
prosecution of an action , the word " evidence " is not equivalent to that evidence which might be
v. Aetna
(West
admissible on trial of the action , but means evidence required in preparation for trial.
,
Special
Term
should
266 NYS2d 600). If there is some doubt of admissibility on trial of action
permit discovery of the evidence and leave the ultimate decision of admissibility to the trial cour.
The information sought need not qualify as evidence admissible at the trial of an action , but
(ld).
Disclosure is required as to all relevant information calculated
(Id).
only to lead to such evidence.
~344). When a plaintiff had placed his
(Siegel New York Practice
to lead to relevant evidence.
,
all
questions
pertaining
to
his
present and past medical history are
physical condition in issue
v. Albany Medical Center Hospital 781 NYS2d 622).
(Rubino
discoverable.
Upon the foregoing, it is hereby
ORDERED that the defendants ' motions and the plaintiffs cross-motion are denied, and it
is hereby
fuer
ORDERED that the plaintiff shall provide the defendants with a response to Metro Drugs
Notice for Discovery and Inspection dated June 19 2008 within thirt (30) days of service of this
order with notice of entry, and it is hereby fuher
ORDERED that as to any such discovery items which the plaintiff responds to as not in
plaintiffs possession , the plaintiff shall provide the defendants with an affidavit attesting to what
steps were undertaken to conduct a search , who conducted the search , and the results of such search.
Dated: August 5 ,
2009
cc: Montfort , Healy, McGuire & Salley LLP
Tromello , McDonnell & Kehoe , Esqs.
Caroll , McNulty & Kull , LLC
ENTERED
AUG 13 2009
COUtUY
NASSAU
COUNTY CLERK' S OFfiCE