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The Supreme Court of New York, New York County recently denied an electrical contractor’s motion for summary judgment where that contractor failed to sufficiently establish that it did not cause or create the allegedly dangerous condition that caused the plaintiff’s fall. In Bernfeld v. CRC Assoc., Inc., 2023 N.Y. Misc. LEXIS 249 (January 17, 2023), plaintiff, Lawrence Bernfeld, exited his apartment building located on West 79^th Street in Manhattan when he stepped out onto the sidewalk and slipped on a patch of ice next to a fire hydrant approximately 40 to 50 feet from the intersection of West 79^th Street and Amsterdam Avenue. He would later testify that he did not see the icy condition prior to his fall, but that there was construction taking place on the roadway and sidewalk outside of his building. The porter and building superintendent at plaintiff’s building each offered testimony stating that a hose was attached to the fire hydrant at issue on the date of the accident by two unknown workers and that the hose and hydrant were actively leaking water.

Defendant, CRC Associates, Inc. (hereafter “CRC”) was hired by the Metropolitan Transit Authority to perform electric work related to the installation of fare collection machines, which would require CRC to lay wiring under the sidewalk for the fare machine installation. CRC’s owner testified that he subcontracted sidewalk demolition, excavation, restoration and site protection work to defendant, Primetime Excavating (hereafter “Primetime”). Primetime’s president testified that it did perform this concrete work and that it would have reason to use water at a job site to clean its tools. Primetime’s job site superintendent and safety coordinator testified that when Primetime had occasion to use water for its concrete saws, it had water tanks on its trucks, which left it with no reason to extract water from the fire hydrant on the date of the accident.

Given the testimony of its president and testimony offered by Primetime representatives, CRC moved for summary judgment arguing that it did not use the fire hydrant on the date of the accident and could not have created the allegedly dangerous condition that caused Plaintiff’s fall. The Supreme Court began its analysis of CRC’s motion by noting that “where a contractor working on a public sidewalk or roadway establishes that it did not cause or create the allegedly dangerous condition on which the plaintiff fell, summary judgment in favor of that contractor is appropriate.” see Camacho v. City of New York, 135 A.D.3d 482, 482 (1st Dept 2016); Levine v. City of New York, 101 A.D.3d 419, 420 (1st Dept 2012). CRC’s president specifically testified that CRC employees were working on Amsterdam Avenue on the date of the accident and its electricians would have no reason to use water in performing their work at this location. Primetime’s job site superintendent added that he was unaware of any need for CRC’s electricians to use water on the date of the accident.

However, the Court denied CRC’s motion for summary judgment without considering the opposition filings because it found that CRC failed to meet its burden of proof and triable issues of fact still existed. Specifically, the Court found that the testimony of CRC’s president was insufficient because he was not present at the job site on the date of the accident and lacked personal knowledge as to CRC’s actions or inactions. CRC did not offer any testimony from the two electricians on site on the date of the accident, each of which may have had personal knowledge superior to that of CRC’s president. Moreover, the Court found that Primetime’s superintendent could not definitively state whether CRC employees used the hydrant on the date of the accident, which was also insufficient to prove that CRC did not create the alleged dangerous condition. Moreover, the Court noted that even if CRC had met its burden of proof, the testimony of the porter and building superintendent for Plaintiff’s building, stating that they saw a hose dripping water from the fire hydrant on the date of the accident, created a triable issue of fact sufficient to defeat CRC’s motion for summary judgment.

Ultimately, the Court’s decision hinged on the sufficiency of the defendants’ collective testimony and the lack of personal knowledge supporting that testimony. Without even considering the opposition filings, the Court took a firm stance on the unreliable nature of evidence lacking personal knowledge and its use in dispositive motion practice.

The Supreme Court of New York, New York County recently reaffirmed the purpose and scope of pre-discovery disclosure in a petition to disclose surveillance footage. In Villani v. Rite Aid of NY, Inc., 2022 NY Slip Op 32949 (September 2, 2022), petitioner, Joanna Villani, received a COVID-19 booster shot at a Rite Aid location in Manhattan. Villani, who had a history of vasovagal, requested to sit in the vaccination room so as to avoid standing and fainting, but she claimed that the Rite Aid pharmacy staff informed her that the area was too busy and that she would need to take a seat in the nearby “alcove area.” Thereafter, Villani claims that she began to feel faint and called out for help to no avail before standing up, passing out, and hitting her head on the pharmacy counter. As a result of the fall, she claimed to have suffer severe facial and eye injuries.

Villani filed a petition seeking disclosure of the in-store surveillance video capturing the incident prior to filing her complaint so that she could better frame the facts of her complaint. Specifically, Villani sought to identify which Rite Aid staff members were present at the time of the incident in order to name those staff members as defendants responsible for her injuries.

In response, Rite Aid of NY, Inc. argued that Villani’s request was an inappropriate pre-discovery disclosure request because Plaintiff’s complaint could adequately allege enough facts to initiate legal action without the need for the surveillance video prior to discovery.

The Supreme Court agreed with Rite Aid of NY, Inc. and denied Villani’s petition. In so ruling, the Court cited Holzman v. Manhattan and Bronx Surface Tr. Operating Auth., 271 A.D.2d 346, 347 (1st Dept. 2000) for the proposition that pre-action disclosure is not appropriate where a plaintiff already has sufficient information to frame a meritorious complaint. The Court specifically noted, “pre-action discovery is not permissible as a fishing expedition to ascertain whether a cause of action exists and is only available where a petitioner demonstrates that he or she has a meritorious cause of action and that the information sought is material and necessary to the actionable wrong…” Bishop v. Stevenson Commons Assocs., L.P., 74 A.D.3d 640, 641 (1st Dept. 2010).

The Court reasoned that Villani had all the information needed to file a meritorious complaint, including when the incident happened, where it happened and what details led to the incident taking place. Villani knew which defendant she would name in a complaint and which cause of action she would use to pursue her claims. Villani’s desire to identify specific Rite Aid employees would be better served through a plenary action for the disclosure of those names rather than the production of the surveillance video, which would be an inefficient means to identify those potential defendants. The Court noted that Villani’s request for the surveillance footage was nothing more than a normal discovery request that may, at most, require a letter to Rite Aid of NY, Inc. requesting that the video be preserved for later production in discovery.

Ultimately, the Court reaffirmed the purpose and scope of pre-action disclosure and petitions seeking the same as a means to identify facts and causes of action that will lead to a meritorious complaint when those facts and causes of action are not already known to a potential plaintiff. When those facts giving rise to a potential complaint and the causes of action to be used are already clear to a plaintiff, pre-action disclosure is neither necessary nor appropriate.