Gilbertson v. City of New York

Gilbertson v City of New York 2024 NY Slip Op 34148(U) November 15, 2024 Supreme Court, New York County Docket Number: Index No. 155934/2024 Judge: Jeanne R. Johnson 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. 155934/2024 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/22/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JEANINE R. JOHNSON PART 52-M Justice -------------------X INDEX NO. 155934/2024 NANCY GILBERTSON, MOTION DATE 06/27/2024 Petitioner, MOTION SEQ. NO. 001 - V -

THE CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF PARKS AND RECREATION, BANK OF AMERICA WINTER PARK AT BRYANT PARK, THE DECISION + ORDER ON BRYANT PARK RESTORATION CORP., BRYANT PARK MOTION CORPORATION, BRYANT PARK MARKET EVENTS, LLC

Respondent.

-------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 7, 8, 9, 10, 11, 12 were read on this motion to/for DISCOVERY - PRE-ACTION

Upon the foregoing documents and oral argument heard on August 28, 2024, Petitioner,

Nancy Gilbertson's request for pre-action discovery pursuant to CPLR 3102(c) is granted.

CPLR § 3 i 02(c) states, in relevant part, "before an action is commenced, disclosure to aid

in bringing an action, to preserve information or to aid in arbitration, may be obtained, but only by

court order." In support of an application pursuant to CPLR 3102(c), a Petitioner must demonstrate

a meritorious cause of action and that the discovery sought is material and necessary to an

actionable wrong. De/grange v. Rea/Real, Inc., 182 AD3d 421 (1 st Dept 2020). The court has

discretion to grant a petition that seeks information that is material and necessary for potentially

viable claims which would assist in identifying prospective defendants. Sokolova v. City of New

York, 224 AD3d 522 (1 st Dept. 2024).

This Court finds that the Petitioner has demonstrated a meritorious cause of action against

potential yet-to-be ascertained entities and/or individuals responsible for the installation,

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INDEX NO. 155934/2024 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/22/2024

maintenance, and/or monitoring of the alleged defective carpet condition at the Winter Village on

December 8, 2023.

Accordingly, it is hereby

ORDERED that the Respondents are Ordered to produce, within 30 days, materials within

their possession that identify the entities or individuals responsible for carpeting the pedestrian

walkways at the Winter Village on December 8, 2023, including but not limited to a complete list

of vendors, contractors, subcontractors, or other entities involved in the installation, maintenance,

and monitoring of the flooring and carpeting at the Winter Village; it is further

ORDERED that the Respondents are to preserve the below as it pertains to December 8,

2023 and not for the entirety of the 2023-2024 holiday season:

-Contact information for and information regarding the roles of all such entities

identified; all communications related to the installation, maintenance, and

monitoring of flooring and carpeting at the Winter Village; all contracts,

agreements, and related documents in the Respondents' possession related to these

entities' involvement in the planning, installation, maintenance, and monitoring of

the flooring and carpeting at the Winter Village;

-Contracts, agreements, work orders, and communications related to the

installation, maintenance, and management of flooring and carpeting; installation

and maintenance schedules, protocols, and quality control measures for flooring

and carpeting; inspection reports and maintenance logs related to ·flooring,

subflooring, or carpeting; installation of carpeting or any other type of similar floor

covering; installation of wood panels or any other type of subflooring or base layer;

any work related to floor assembly, laying down of temporary or permanent

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INDEX NO. 155934/2024 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/22/2024

flooring, floor treatment, and carpeting, and maintenance, performed by any trade

such as flooring contractors, carpenters, carpet installers, and/or any other

professionals involved in the preparation, installation, and/or maintenance of the

flooring surface at the Winter Village on December 8, 2023;

-Permits, licenses, or approvals issued or received by any of the Respondents

regarding responsibility for the management, production, or implementation of the

Winter Village on or about December 8, 2023;

-Documents detailing the application process, criteria for approval, and any

conditions or requirements specified in the permits regarding the installation,

maintenance, and monitoring of the flooring and carpeting at the Winter Village;

all correspondence and communications related to. the issuance, renewal, or

modification of these permits; records of inspections or compliance checks

conducted as part of the permitting process; all violations or citations issued or

received relating to such permits for the event, including follow-up actions or

resolutions;

-Safety plans, risk assessments, and hazard mitigation strategies for the Winter

Village, focusing on outdoor flooring, carpeting, and/or walkways, in the

Respondents' possession; and safety inspection records for outdoor flooring and

walkways from 2018 to the present;

-Incident reports, complaints, or records of accidents related to outdoor flooring,

carpeting, and/or walkway issues; written complaints, 311 calls, incident reports,

risk assessments, safety plans, hazard mitigation strategies; and any other

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INDEX NO. 155934/2024 NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 11/22/2024

documentation regarding trip and fall hazards at the Winter Village at Bryant Park

from 2018 to the present;

-Insurance certificates, policies, or coverage details for any entities related to

outdoor flooring or carpeting or trip and fall liabilities as they relate to the operation

of the Winter Village;

-Records ·of claims or notifications of pot~ntial claims related to trips and falls at

the Winter Village from 2018 to the present; and

-Surveillance footage depicting the trip and fall incident that occurred on December

8, 2023, at approximately 5:30 p.m., as well as for the entire day preceding the

Petitioner's trip and fall.

This constitutes the Decision and Order of the Court.

11/15/2024 DATE

~ CHECK ONE: CASE DISPOSED ·

GRANTED . □ DENIED GRANTED IN PART . □ OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: . INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE .

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