The following papers numbered E48 to E80 were read on this motion by defendants for summary judgment pursuant to CPLR §3212 and dismissing plaintiffs’ complaint, and plaintiffs’ cross-motion for summary judgment on various grounds, or alternatively to preclude defendants from contesting liability, or to strike defendants’ Answer for failing to produce court ordered discovery.Papers NumberedNotice of Motion, Affirmation, Exhibits E48- 56Notice of Cross-Motion, Affirmation, Exhibits E57-73Affirmation in Opposition and Reply E77-78Plaintiff’s Affirmation in Reply E79-80 Upon the foregoing papers, and after oral argument/conference at the call of the calendar, the following is this Court’s decision on this motion and cross-motion:This matter involves a collision between two pedestrians that occurred on January 1, 2015 in front of the premises located at 102-05 Queens Boulevard that is operated by the named defendants as a discount store. Plaintiff Isabel Munoz (“Munoz”) alleges that an employee was exiting the store in a fast-paced fashion and carrying a box that obstructed his view, when he collided with her causing her to fall on her right side and sustain serious injuries. Plaintiff Munoz also indicated that the store uses part of the sidewalk to display and sell goods. Based on these facts, defendants moved for summary judgment and to dismiss the complaint alleging that the accident giving rise to this matter was not the result of negligence and is not actionable conduct. Plaintiffs cross-moved for the same relief arguing that defendants’ were negligent, or on the basis of spoliation and destruction of material evidence, or to preclude defendants from contesting liability, or to strike the defendants’ Answer for failure to produce court ordered discovery.Both parties rely heavily on the case Peralta v. La Placita Dominica Market Corp., (170 Misc2d 340 [Sup Ct, Queens Co, 1996]). Peralta is analogous to the present matter in that plaintiff was injured while visiting the defendant’s store, when defendant’s employee stepped on plaintiff’s foot causing injury to his ankle. The court in Peralta granted defendant’s post-trial motion to set aside the verdict and dismiss the complaint, finding that plaintiff failed to “adduce affirmative proof of conduct which fell below the standard of care expected of a reasonably prudent person in the same position” (id at 346). Defendants highlight those portions of the decision that indicate not every accident results in the imposition of liability and is compensable. They cite the following language from the court’s memorandum:“There are certain occurrences which one might consider sufficiently recurring as to be incidental to the ususal routine of life in our society, and, while one might strive to avoid them, their occurrence is not necessarily actionable without some proof of negligence. A few examples come to mind — accidental bumping into another while walking…” (id at 342-43).The plaintiffs use Peralta in a different manner. They argue that even though the court dismissed the complaint therein, the court implies in dicta that had the plaintiff offered proof that defendant’s employee failed to exercise reasonable care, the decision would have been different. Plaintiffs highlight that the court indicated all the ways in which the Peralta plaintiff may have offered such proof, but failed to. For example, the court states that “there was no testimony to in any way describe the manner by which [the employee] approached — nothing in relation to the degree of care exercise by him…[and] there was no testimony that [the employee] rushed or hurried in his approach, nor was there any proof that he was carrying something…” (id at 341). Plaintiffs argue that these very circumstances exist in this matter, and therefore, the decision should be different. Summary judgment in defendants favor should be denied. Plaintiffs also cross-moved for summary judgment in their favor based on, inter alia, various discovery related issues.In light of Peralta, this is not a matter of true first impression. Nevertheless, it is exceedingly rare and therefore, little guidance is available to the court. It appears only Peralta can be instructive. Accordingly, based on the facts of this case and evidence offered by plaintiff through her testimony that defendants’ employee was exiting onto the sidewalk in a fast pace and with an obstructed view, this is sufficient to indicate the existence of potential negligence on the defendants’ part. In other words, this is factually unlike Peralta, which leads to a contrary decision. Defendants have not satisfied their burden in demonstrating freedom from negligence and entitlement to judgment as a matter of law, (see CPLR §3212[b]: Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 852 [1985]); Zuckerman v. City of New York, 49 N.T.2d 557, 562 [1980]), and their motion for summary judgment is denied.Likewise, the plaintiffs’ cross-motion for summary judgment based on defendants’ negligence is denied since there are issues of credibility that preclude the relief requested, (see Sillman v. Twentieth Century Fox F. Corp., 3 NY2d 395, 404 [1957]). As to the remaining requests for relief based on discovery issues, it appears that defendants have been less than forthcoming regarding the identity of the employee involved in this incident, and they should not be permitted to gain from their evasion. To that extent, there has been a Preliminary Conference Order, a Compliance Conference Order and a So-Ordered Stipulation regarding outstanding discovery issues, and defendants have failed to produce such employee despite same. Again, this non-compliance should not inure to defendants’ benefit. Therefore, should defendants continue to disregard the aforementioned orders and not provide information concerning their employee, they will be precluded from offering any evidence or testimony at trial regarding such employee’s actions as they relate to the underlying accident.In light of the above, it is herebyORDERED, that defendants’ motion for summary judgment and to dismiss plaintiffs’ complaint is hereby denied in its entirety; and it is furtherORDERED, that those portions of plaintiffs’ cross-motion seeking summary judgment are denied; and it is furtherORDERED, that those portions of plaintiffs’ cross-motion seeking to preclude or strike are granted to the extent that should defendants’ fail to specifically identify the employee involved in the accident underlying this action, named herein as “John Doe”, within ten (10) days of the date of service of this Order with Notice of Entry upon them, then such defendants shall be, without further order of this Court, precluded from offering any testimony or evidence at trial regarding such employee’s actions in connection with the underlying accident; and it is furtherORDERED, that a copy of this Order with Notice of Entry shall be served upon defendants within ten (10) days of the date of entry hereof.1Dated: Feb. 19, 2019
