Posted on Aug 31, 2011
A New York appellate court has ruled that New York City's "cavalier" attitude toward revealing internal information has cost its defense the verdict in a personal injury case.

In June 2007, Lewis Elias tripped over the stub of a broken sign pole in Harlem. He sued the city for damages. In July, his lawyers called for the presentation of five years-worth of Department of Transportation records and documents relating to the spot of the accident on Riverside Drive near West 129th St. in upper NYC. Manhattan Supreme Court Justice Saliann Scarpulla ordered the documents to be handed over in September 2007. This and three further court orders were not adhered to.

By July 2009, Elias asked the court to strike the city's answer -- which would mean the forfeiture of their case and his victory. This motion was denied. However, Justice Scarpulla gave the city a 30-day ultimatum to comply with outstanding document requests.

The case was appealed and the First Department levied a $7,500 fine and issued a similar directive to the one Scarpulla administered.

In October 2010, Manhattan Supreme Court Justice Cynthia Kern presided over the case and gave the City of New York another 30-day ultimatum. Its noncompliance would result in the striking of the City's (corporation counsel) answer.

Elias appealed that they should not even have the opportunity for another chance and the First Department agreed this week, calling the Corporation Counsel's attitude through the duration of the case, "cavalier." The City's Law Department protested that the discovery requests kept changing and that they did their best to comply.

This is an example of a defense strategy. Although it does not happen often, when you have been in practice for more than 23 years- as I have, you know exactly when it happens. The only thing you can do is to ask the court to put some teeth into its order to compel the other side to do what they are supposed to do. The biggest fear is that the defense's answer will be stricken and you will automatically receive a default against the defense. That means that liability has now been decided and you simply proceed forward with a trial on damages.

If you would like more information about how medical malpractice and accident cases work in the state of New York, I encourage you to explore my educational website. If you have legal questions,  I urge you to pick up the phone and call me at 516-487-8207 or by e-mail at [email protected] to answer your questions. That's what I do every day. I welcome your call.

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