4103N. FRANCIS MCHUGH, plf-ap, v. THE CITY OF NEW YORK def-res — Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for ap — Fabiani Cohen & Hall, LLP, New York (John V. Fabiani, Jr. of counsel), for res — Order, Supreme Court, New York County (Ellen M. Coin, J.), entered May 4, 2016, which, to the extent appealed from as limited by the briefs, denied plaintiff’s motion to strike defendants’ answers for discovery violations, unanimously modified, on the law, the facts, and in the exercise of discretion, to strike the answer of defendants the City of New York and the Metropolitan Transportation Authority (MTA), and otherwise affirmed, without costs.
Plaintiff allegedly was injured while working in a tunnel during construction of the Second Avenue Subway. He commenced an action against the City and the MTA in 2012, and those defendants failed to produce a witness for deposition, even after the issuance of three so-ordered discovery stipulations. In 2014, plaintiff commenced an action against defendant Parsons Brinckerhoff, Inc., which was consolidated with his action against the City and the MTA. After defendants failed to comply with two additional so-ordered discovery stipulations requiring them to produce witnesses for deposition, plaintiff moved to, among other things, strike their answers. That motion was resolved in July 2015 by a so-ordered stipulation providing for production of “[a] [d]efendant” witness “with knowledge,” with plaintiff reserving the right to depose additional defendants. Defendants eventually produced an employee of Parsons for deposition. The witness, however, was admittedly unprepared, could not answer a great number of questions posed to him, and could not answer any questions respecting the City and the MTA, or ownership of the tunnel and the ground on which it was built.
