(Wiki/Adam E. Moreira)
The Metropolitan Transportation Authority withheld discovery information, not only from a plaintiff allegedly injured by an MTA police vehicle but also from its own in-house lawyers, an appellate panel has found in ordering the agency to pay a $10,000 sanction.
In a brief order Thursday, the Appellate Division, First Department, said the authority’s “willful and contumacious behavior was a significant waste of limited and strained judicial resources” and imposed a sanction of $10,000. It declined to sanction the MTA’s then in-house counsel, Neil Redmond, “as the record indicates that the authority withheld the available information from its” attorney as well.
Kevin Ortiz, deputy director of external communications with the MTA, declined comment.
The court’s decision in Asim v. City of New York, 2014 NY Slip Op 03939, expanded on a January 2013 ruling by Bronx Supreme Court Justice Larry Schachner (See Profile), who had struck MTA’s answer in the suit but did not impose sanctions. The First Department directed the agency to pay the $10,000 sanction to the Lawyers’ Fund for Client Protection, an Albany-based agency that reimburses victims of dishonest attorneys.
Asim arose from an accident on May 22, 2007. At that time, Celeste Asim, an employee of Cablevision, was laying wire in the Bronx as part of a training exercise when an MTA vehicle operated by one of its officers drove over the wire while she was holding it, dragging Asim several feet.
Asim sued, but the MTA denied that it owned, operated or controlled the vehicle involved. MTA stonewalled discovery for three years and maintained through Redmond that the agency was not responsible and there was no report of the incident, according to court records. Eventually, the authority, now represented by outside counsel Goldberg Segalla of Garden City, produced an affidavit from the officer and incident reports.
Schachner in January found that the authority’s “willful and evasive conduct” warranted striking its answer. But after the MTA appealed, the First Department went a step further and imposed a sanction.
“For four years and despite discovery orders, the authority failed to acknowledge ownership of the MTA police vehicle that caused plaintiff’s injuries or to disclose the name of the driver of the vehicle,” the appellate panel said in an unsigned order by justices Angela Mazzarelli (See Profile), David Friedman (See Profile), David Saxe (See Profile), Sallie Manzanet-Daniels (See Profile) and Paul Feinman (See Profile).
The panel said the MTA “repeatedly denied ownership and employment of the vehicle’s driver” and inaccurately claimed that the incident was “unreported.” It said the agency “failed to provide an excuse for the late disclosure of the report and the driver’s identity.” But the court made clear that Redmond was not to blame.
Asim’s attorney, David Roth of Roth & Roth in Manhattan, said he would have lost the motion except that Cablevision had videotaped the incident.
“The whole thing was caught on video,” Roth said. “I would have lost this motion and would not have been able to prove anything. I never would have been able to oppose their [summary judgment] motion except for the random luck of having the video.”
Roth said the MTA’s conduct was “one of the most outrageous things I have ever experienced.”
He said the authority’s long denial of responsibility is odd, given that the officer involved in the accident had contacted his client when she was in the hospital to see how she was doing and that authorities had actually gone to Cablevision and viewed the pixilated video, all the while claiming the authority wasn’t involved.
“I was completely, completely shocked that they appealed,” Roth said. “And if they hadn’t appealed the striking of their answer, then I would have let it go. But because they appealed, I appealed.”
Brendan Fitzpatrick, a partner at Goldberg Segalla, represented the MTA. Kevin Lee Bigelow, of counsel to Gruvman, Giordano & Claws in Manhattan, represented Redmond and his boss, Wallace Gossett. Fitzpatrick was not immediately available for comment. Bigelow declined comment.