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In a pair of decisions handed down last week, the New York Appellate Division, 2nd Department, struck New York City’s answers in tort cases as a sanction for failing to comply with discovery orders. The rulings in both cases mean that the city will not be able to contest liability and that the only issue remaining to be resolved is damages, said attorneys for the plaintiffs in both cases. Thomas Merrill, deputy chief of the tort division in the Corporation Counsel’s Office, essentially agreed, but said the plaintiffs must produce some evidence to establish each element of their claims. In one case, a motorist is seeking recovery for back injuries sustained in an automobile accident allegedly caused by the city’s failure to repair “a puddling condition” on a Staten Island road. In the other case, a disabled teenager is claiming she was sexually molested by the driver of her school bus. Jeffrey A. Lichtman, the immediate past president of the New York State Trial Lawyers Association, a plaintiffs’ group, said the ruling reflects the 2nd Department’s determination that “the city should be treated like any other litigant and be cognizant of court orders.” It should also move cases through the system “in a reasonable fashion,” he added. Brian Isaac, who represented the plaintiff in the automobile accident case, said that compliance with discovery orders is “a big problem” in litigation with the city, and that “in many instances the city has not complied with discovery orders for years.” Ruth E. Bernstein, who represented the student, also asserted that discovery with the city is “always problematic.” Merrill countered that in “the vast majority” of “the tens of thousands” of discovery requests the city receives each year “we comply with our discovery obligations.” The city is defending 40,000 cases, he noted. “We take our discovery obligations very seriously,” he added, and “are reviewing both the 2nd Department rulings to identify what went wrong and what can be done to insure our compliance in other cases.” In Thomas D’Aloisi v. City of New York, 03-08114, Isaac, a partner at Pollack, Pollack, Isaac & DeCicco, said he was seeking information to demonstrate that the city was aware of the “puddling condition” where the accident occurred. He said he spent more than two years trying to get city maintenance and accident records for the exact location. REPORTS IN DISPUTE Merrill responded that the city had “provided lots of discovery” and produced five witnesses for depositions. As for the accident reports, which were in dispute before the 2nd Department, he said, the plaintiffs had been able to get copies from the state. Bernstein, a solo practitioner, said her client sought evidence that the city had been negligent in checking the backgrounds of bus company employees. The city had hired a private bus company to transport the plaintiff, Milagros Mendez, and other disabled children to their school. Mendez was also seeking to prove that the city had not adequately supervised the bus company and its employees, Bernstein added. But after two years and four discovery orders, Bernstein said she had not received the most basic records, such as a copy of the contract between the city and the bus company. Nor, she added, had the city produced records of its background checks or documents and witnesses related to an internal investigation of Mendez’s charges by the Department of Education. Merrill responded that the alleged perpetrators of the molestation were both employees of the bus company, which operates independently of the city. “The city only had limited involvement in the case,” he added. The plaintiffs alleged that a matron assigned to the bus had not taken adequate measures to prevent the alleged abuse. Both rulings were unanimous and unsigned. The five judges who joined in the ruling in the automobile accident case were David S. Ritter, Sandra Miller, Sandra L. Townes, Stephen G. Crane and Reinaldo E. Rivera. A four-judge panel heard the sexual molestation case, Mendez v. City of New York, 03-02913. Sitting on the panel were Townes, Howard Miller, Daniel F. Luciano, and Robert W. Schmidt.

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