School v. Pung San Constr. Corp.

2024 NY Slip Op 33721(U)

• Court: New York Supreme Court, New York County
• Decided: October 21, 2024
• Docket: Index No. 161763/2013
• Status: Unpublished

Opinion

School v Pung San Constr. Corp. 2024 NY Slip Op 33721(U) October 21, 2024 Supreme Court, New York County Docket Number: Index No. 161763/2013 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 161763/2013 NYSCEF DOC. NO. 432 RECEIVED NYSCEF: 10/21/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DEBRA A. JAMES PART 59 Justice ---------------------------------------------------------------------------------X INDEX NO. 161763/2013 RAMAZ SCHOOL and CONGREGATION KEHILATH JESHURAN, MOTION DATE 10/16/2024

Plaintiffs, MOTION SEQ. NO. 008 009 010

-v- PUNG SAN CONSTRUCTION CORP, C.Q. ELECTRICAL DECISION + ORDER ON CONTRACTING CORP, and MAXTECH ELECTRICAL INC., MOTION

Defendants. ---------------------------------------------------------------------------------X

PUNG SAN CONSTRUCTION CORP, Third-Party Index No. 595092/2014 Third-Party Plaintiff,

-against-

VVA, LLC and AMHI CORP., Third Party Defendants.

--------------------------------------------------------------------------------X

The following e-filed documents, listed by NYSCEF document number (Motion 008) 334, 335, 336, 337, 338, 339, 340, 341, 342, 352, 413 were read on this motion to/for ORDER OF PROTECTION .

The following e-filed documents, listed by NYSCEF document number (Motion 009) 343, 344, 345, 346, 347, 348, 349, 350, 416, 417, 418, 419, 420, 421, 422 were read on this motion to/for DISCOVERY .

The following e-filed documents, listed by NYSCEF document number (Motion 010) 414, 415, 423, 424, 425, 426, 427, 429 were read on this motion to/for VACATE - DECISION/ORDER/JUDGMENT/AWARD.

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ORDER

Upon the foregoing documents, it is

ORDERED that the motion of plaintiffs for a protective order

with respect to the Notice to Admit dated April 1, 2024, propounded

by defendant Maxtech Electrical Inc. (mot seq no 008) is granted

and; it is further

ORDERED that, in order to prevent unreasonable annoyance,

disadvantage, and prejudice, plaintiffs shall not respond to such

Notice and such Notice is of no force and effect; and it is further

ORDERED that the cross motion of defendant Maxtech

Electrical, Inc. to compel plaintiffs to respond to Demand for

Bill of Particulars dated April 1, 2024 (NYSCEF Doc No 331) is

denied, and such Demand for Bill of Particulars is of no force and

effect; and it is further

ORDERED that the motion of defendant Pung San Construction

Corp. to vacate that portion of the Compliance Conference Order

dated July 19, 2024 and filed on August 8, 2024, (mot seq no 010)

that determined that the cause and origin records of plaintiff are

excluded from discovery is vacated, and this court directs

plaintiffs to produce such cause and origin records, within twenty

(20) days of the date hereof; and it is further

ORDERED that motion of defendant Pung San Construction Corp.

to compel plaintiff to respond to outstanding discovery demands

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(mot seq no 009) is granted, in accord with the above fourth

decretal paragraph; and it is further

ORDERED that all counsel shall refrain from posting on NYSCEF

discovery demands and/or responses to discovery demands, (except

for demands for bills of particulars or responses to such bills of

particular demands), unless such demands or response are exhibits

to any motion on notice or by order to show cause, and shall

exchange by group e-mail transmissions only, as such posting

unnecessarily and improperly clutters the docket; and it is further

ORDERED that counsel are directed to post on NYSCEF a proposed

joint discovery status conference order or competing proposed

discovery conference order(s) at least two days before March 4,

2025, on which date counsel shall appear via Microsoft Teams,

unless such appearance be waived (upon joint request transmitted

to IAS Part 59 clerk, SFC-Part59-Clerk@nycourts.gov) by the court.

DECISION

This court agrees with plaintiffs that defendant Maxtech

Electrical Inc. “could not have reasonably believed there was no

substantial dispute” about the identity of evidence or inability

to identify evidence concerning the cause of the subject fire,

which such defendant improperly attempts to elicit in its Notice

to Admit dated April 1, 2024 (NYSCEF Doc No 337), Fetahu v New

Jersey Transit Corp., 167 AD3d 514, 515 (1st Dept 2018).

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This court likewise agrees with the reply of plaintiffs to

the defendant Maxtech’s cross motion to compel response to its

Demand for Bill of Particulars dated April 1, 2024 (NYSCEF Doc No

331), that such demand was palpably improper, Somma v Sears,

Roebuck and Company, 52 AD2d 782 (1st Dept 1976), calling for an

opinion assessing the evidence rather than any amplification of

the pleadings.

This court disagrees with plaintiffs that the Discovery

Compliance Order dated July 19, 2024 (NYSCEF Document Number 351)

was issued on notice, as there was never any application made on

notice or by show cause order for such order, which order was the

product of a discovery conference with letter submissions. Such

Discovery Compliance Order, which was ex parte, was not appealable

and therefore moving defendant Pung San Construction Corp’s remedy

was to move to vacate such Discovery Compliance Conference Order.

The herein order resolving such motion to vacate is appealable.

See CPLR 5701(a)(3).

The court also disagrees with plaintiffs that its cause and

origin records are exempt from discovery, as the mere fact that

such records were delivered to its subrogation attorney does not

insulate same from disclosure. Nor does plaintiffs’ intention to

call its in house fire investigator as an expert at trial insulate

the records upon which such expert will base his opinion from

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disclosure. See Flex-O-Vit USA, Inc v Niagara Mohawk Power Corp,

281 AD2d 980 (4th Dept 2001).

10/21/2024 DATE DEBRA A. JAMES, J.S.C. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION

GRANTED DENIED X GRANTED IN PART OTHER

APPLICATION: SETTLE ORDER SUBMIT ORDER

CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE

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