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THE NEW YORK STATE TRIAL L AWYERS INSTITUTE

Bi l l Of Part icularsVOL II, 2012

A Review Of Developments In New York State Trial Law

In This Issue

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"DECISIONS" INFORMATION

INSIDE

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MUNICIPAL DISCOVERY: A COMPREHENSIVE ANALYSIS by David A. Roth, Esq. & Joshua N. Stein, Esq.

PROTECTING PLAINTIFF'S RIGHTS WHEN SETTLING THE THIRD-PARTY ACTIONby Stanley A. Tomkiel, III, Esq.

NEW YORK STATE MEDICAL INDEMNITY FUND AFFECTS PLANNING FOR GOVERNMENT ENTITLEMENTS by Joan Lensky Robert, Esq.

THE BIOPHYSICAL PROFILE: TORT REFORM, PATIENT SAFETY, AND OBSTETRICAL MALPRACTICE by Steven E. Pegalis, Esq.

PREPARING YOUR CLIENT FOR THE MEDICAL MALPRACTICE DEPOSITION by Edward A. Ruffo, Esq.

CREATING A RECORD TO WIN ON APPEAL – PART ONE by Eileen Kaplan, Esq.

THE TEN COMMANDMENTS OF TAKING DEPOSITIONS IN A NURSING HOME CASE by Jennie Shatynski, Esq.

COURT OF APPEALS CLARIFIES ISSUES OF PROOF IN "SERIOUS INJURY" THRESHOLD CASES by Andrew Bokar, Esq.

MEDICARE SECONDARY PAYER COMPLIANCE IN 2012: A FORMALIZED APPROACH TO THE QUESTION OF MEDICARE SET-ASIDES FOR CIVIL PLANTIFF AND DEFENSE COUNSEL by Matt Garretson, Esq., Jason Wolf, Sylvius von Saucken, Esq. & John Cattie, Esq.

TIPS FOR SUCCESSFUL MEDIATION by Hon. Joseph P. Spinola (Ret.)

LINCOLN, MANDELA, & GANDHI WALK INTO A COURTROOMby Evan M. Goldberg, Esq.

PROVING DAMAGES IN A WRONGFUL DEATH CASEby Ben B. Rubinowitz, Esq. & Evan Torgan, Esq.

PLAINTIFF'S VIEW: VOIR DIREby David J. Dean, Esq.

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Does this scenario sound familiar? It’s the day before trial, and in the morning, you are scheduled to select a jury in a case against any one of a variety of potential municipal defendants, when lo and behold, at 4:00 p.m., a hundred pages of discovery comes through your fax machine. Had you received the records earlier, they might have helped your case or led to more critical discovery. You peruse the records, steam coming out of your ears. You say to yourself: “I demanded this discovery three years and three motions to strike/compel ago!!” Although you dust off your best motion in limine to preclude the newly served evidence and to strike the defendant’s answer for its willful and contumacious failure to provide these records, you realize full well that the chances of winning that motion are slim.

In Court, the first argument that defense counsel makes is: “You never demanded these specific records. We gave you all of the records you demanded.” Never mind that the records fall squarely within any remote interpretation of your discovery demands. The matter is now within the discretion of the Court, which may not comprehend how badly prejudiced the plaintiff is by the late disclosure. Often, instead of precluding the records, precluding the testimony, or striking the defendant’s answer, the Court rewards the municipal defendant with more delays and ordering further dis-covery to take place either before or during the trial. This is a win for the municipalities as they put up no reserves, and each delay is a victory.

The problems of litigating cases against municipali-ties are legendary: they pick their own no-knowledge witnesses to produce for deposition, and if you go to a compliance conference and try to get anything out of the ordinary, it’s a knock-down drag-out fight. To suc-cessfully prosecute these cases, it becomes necessary to have a better plan of attack during discovery. This article will attempt to shed light on some areas of dis-covery that the authors believe will aid in the prepa-ration of your municipal cases, and help prevent municipal defendants from claiming at time of trial that the demands did not encompass these essential records.1 To paraphrase the Rolling Stones, you may not get what you want, but you just might find that you’ll get what you need.

Municipal Discovery: A Comprehensive Analysis

By David A. Roth, Esq. & Joshua N. Stein, Esq.

STRATEGIES FROM THE BEGINNING: PRE-SUIT

There are some tools that lawyers don’t use to their full advantage. The first thing that you should do when you get a case with municipal defendants is to visit the websites of the applicable municipal agen-cies – they might have information that can be useful or give notice. In a case where children were injured while playing and jumping off a beautiful but dan-gerous waterfall in the Bronx, proving notice was going to be a tough sell. No prior “written” notice was necessary, but notice of a broken fence was important to show that children were able to access this “attractive nuisance.” A search of the New York City Parks Department website revealed beautiful pictures of the river, the scenic park, and a lovely waterfall. A careful look at the picture revealed a group of children playing on the very waterfall at issue in the case, and jumping into the river below!

After going to the website, you have to think FOIL, FOIL, and more FOIL: what can I FOIL, where can I FOIL it, and which agencies (even if they are not the target) might have information that can be FOIL’d that might be applicable to the facts in your case. You can FOIL from the City, State, MTA, Department of Education, and other municipalities and their agencies. In many instances, there is an online FOIL application, which few attorneys know about and even less use. Many websites are extremely help-ful in assisting you with your FOIL request: for example, the MTA has a comprehensive FOIL page on their website (available at mta.info/mta/foil) listing all the subject matters you can FOIL; the City’s Parks and Recreation Department has actual reports posted regarding inspections of NYC parks (available at www.nycgovparks.org). There are far too many websites to list, but by visiting any search engine and typing in FOIL as well as the name of the relevant municipality and/or agency, you can have a big headstart on discovery in your case before your notice of claim is even filed.

THE REALITIES IN LITIGATING THE MUNICIPAL CASE

A difficulty intrinsic to the municipal case is that the municipality, more so than almost any other defendant, is the guardian of the records that you ultimately need to prove your case. The Courts and the part clerks do not always seem to understand that a plaintiff asking for records dating back more than two years is not trying to place an unreasonable burden on the municipality, but rather marshalling the evidence necessary to make the case.

It is crucial to get discovery as far back as possible. If the municipal agency has records pertinent to the facts of your accident, no matter how old the record, it should be discoverable. The older the record is for your particular defect, the more relevant it is to the municipal agencies’ negligence, not less. The Pattern Jury Instructions (PJI) are your greatest tool in help-ing to explain why these records are relevant and the age of the records are part of the sine qua non of your burden of proof in your case. The longer the munici-pality knew or should have known of the defect’s existence, the less reasonable the municipality’s con-duct in failing to fix the defect. The pertinent section of the charge is:

PJI 2:225 Municipal Liability--Public Premises and Ways--No Prior Written Notice Requirement2

Negligence is the failure to use reasonable care. Reasonable care means that degree of care that a reasonably prudent property owner would use under the same circumstances. Negligence includes both a foreseeable danger of injury to another and conduct that is unreasonable in proportion to the danger.

In order to find that CD was negligent, you must find that (1) CD knew of the unsafe con-

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dition long enough before AB’s injury to have permitted CD in the use of reasonable care to have it corrected, or to take other suitable pre-cautions.

It would seem self-evident based upon the charge that the older the defect, the more egregious the defendant’s negligence. A defendant arguing that a defect only existed for one year, and that it could not reasonably address the defect with hundreds of miles of roads or premises to monitor, might find a recep-tive jury. A jury’s perception might easily change if the defect existed for five years without the munici-pality addressing it.

The length of time of the defect’s existence goes directly to the heart of the defendant’s negligence. Plaintiffs must fight to get this across to the Court, and to the extent that the records exist they should be produced. The older the records, the greater the neg-ligence; therefore, the records are all relevant regard-less of when they were created. Note that even where prior written notice is required, the part of the charge relating to the reasonableness of the municipalities’ conduct is still read to the jury.

When a plaintiff requests all records, the City’s most common response tends to be “overbroad.” There is

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a fundamental problem with this response: the defen-dant municipality knows the names of the different records and the plaintiffs rely upon the defendants to produce the relevant records. If the plaintiff does not know the names of the specific relevant records, how can the plaintiff possibly request them? Generally the plaintiffs cannot make out a prima facie case with-out records obtained from the municipality, records which the municipality has a statutory duty to main-tain. Preclusion of the necessary records hurts the plaintiffs and actually rewards the municipality. The relief of “produce records within [X] days or they will precluded at the time of trial” usually inures to the benefit of the municipality. Additionally, requesting specific records by default is often interpreted by both the municipality as well as the courts to exclude other relevant records.

In the past, due to the amount of lawsuits against the City of New York and other municipalities, the court would require the city to look only two years back. This is especially problematic as it pertains to any prior notice, whether it be a notice of claim or other pertinent records. At trial, the City can pro-duce records that are beneficial to it, never exchange them with the plaintiff, and then say they are in full compliance with the prior Court Orders. Recognizing these problems, it would seem reasonable to make a motion to preclude the production of any records not exchanged during discovery. This is especially true in light of the Court’s general reluctance to require the municipality to produce records more than two years back (yet often the courts refuse to rule on such motions, stating it is a matter for the trial judge). This potentially leads to trial by ambush, which is exactly what the motion to preclude is designed to avoid.

The ease with which new technology permits search-es to be done has not been considered by the courts. The municipalities are routinely permitted to give partial discovery and conduct incomplete searches, providing records and documents for a very short time period.

At a recent deposition in Shirley Ivory v. City of New York et al.3, conducted on September 28, 2011 by the firm Kahn Gordon Timko & Rodriques, the City’s record searcher Sherry Johnson-O’Neal testified as follows:

Q. Can you access the sidewalk database from the same computer that you would access the MOSAICS or do you have to go somewhere different?A. Yes, the same....

Q. Earlier you said when you made a search of the computer system of MOSAICS that you would enter the location and then do a search. Are there certain parameters with regards to time that you would enter into the computer?A. The search request would indicate the time parameters with which the search is to be per-formed for.Q. Let us say for example, this is just for instance, but let us say you are looking for per-mits two years before July of 2007. Okay?A. Yes.Q. Can you change the parameters of the search to go further back?A. Yes, you can.Q. How far back can you search records into MOSAICS?A. To my recollection, ‘94.

MUNICIPAL DISCOVERY PARTS

The practicality of getting discovery once you’re in the Municipal Discovery parts is equally frustrating and difficult.

The different counties have different ways of handling initial conferences for the Municipal parts. There are usually preprinted discovery orders (Case Scheduling Orders or Preliminary Conference Orders); regardless of the name, they are all compilations listing what the Plaintiff should get or what the municipality should provide for the particular type of case. Currently, in New York County, there is a case scheduling order in the City part which has the following sec-tions: Police Misconduct, Inmate Assault, Premises Liability cases, Board of Education cases, Motor Vehicle Accidents with City-owned Vehicles, Slip and Fall cases (Department of Sanitation), Trip and Fall cases, Defective Traffic Signal cases and Defective Traffic signs. These subsections take up more than two pages in the Orders. Despite the best efforts of the Courts, these municipal Case Scheduling Orders and PC Orders are simply not comprehensive enough.

When attending either a preliminary conference or a case scheduling conference in the municipal parts, the courts are reluctant to add to the aforementioned orders detailing the discovery. There is a heavy resis-tance by both the Court clerks as well as the munici-pal attorneys when you try to add or supplement your own demands to these Orders. We suggest you serve your comprehensive demands the day after the initial conference or preliminary conference, as it is simply not worth the fight at the initial conference.

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Practice Tip: Plaintiff’s attorneys should be aware that often these Orders subsume all prior discovery demands. A suggested list of documents to request in municipal cases (that do not appear on those stan-dard orders) is included at the end of the article.

Additionally, these orders state that manuals are available to be reviewed in the municipality’s office. Whether it is a Transit Authority manual or a police training manual, you must either fight to have the agency produce the relevant portions or go to the municipal offices and review these manuals. It is the rare occasion when the Plaintiff’s attorney actually goes to the offices and looks at the manuals but it must be done.

One frequent difficulty is that the City often treats the different departments as completely separate enti-ties. The City will routinely respond to a discovery demand by stating: “We have requested a search be conducted,” or “we are looking for documents.” This may seem reasonable, but although the corporation counsel has put in a request for the search, no one may be working on it. At conferences, corporation counsel claims that the client is not cooperating – this is absurd; there is only one client and it is the CITY. The City is in possession of its own records.

Practice Tip: In every compliance order, instead of stipulating all discovery is done and the case is ready to go on the trial calendar, plaintiffs should request that the municipal defendant stipulate that it will not produce any additional documents or attempt to bring in additional documents at the time of trial. Plaintiffs want to know that the full record has been produced by the defendants and that the plaintiff will not be ambushed at the time of trial.

One of the few methods of tackling the problem of late document production is to demand Jackson Affidavits. Jackson v. City of New York, 185 A.D.2d 768 (1st Dept. 1992), has been interpreted to require an affidavit from a record searcher that must contain elements allowing the plaintiff and the court to rely upon representations that a thorough search has been conducted by someone competent to perform it.4

In Lewis v. City of New York, 2007 NY Slip Op 27369, the Court stated that an affidavit of a searcher attest-ing that requested records are missing should con-tain, at a minimum, information regarding:

Qualifications of the Affiant; Diligent Search Efforts, made to locate and

produce said reports and records including the date, time, and place for each search conducted;

a.b.

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Reason for the Absence, in that the affiant must provide a meaningful explanation as to why said reports and records are not now avail-able;

Chain of Custody, in that affiant must pro-vide the identity of the person or persons who created said reports and records as well as all other persons in the authorized chain of custody, and if unknown an explanation must be pro-vided;

Last Known Possessor, in that the affiant must provide the identity of the person last in possession of same, and if unknown, an explana-tion must be provided;

Storage Locations, in that all of the autho-rized locations where such reports and records are, or should have been, preserved, maintained and stored in accordance with the applicable rules and regulations must be identified; and

Applicable Rules and Regulations, in that all rules and regulations relating to the preservation, maintenance and storage of reports and other records, made by an employee or other person charged with the obligation to make the said report and record, must be identified and a copy of said rules and regulations must be made avail-able and/or appended as an exhibit.

MOTION PRACTICE

A. The Practicalities

Motion practice has become the defendant’s weap-on of choice. Motions, if nothing else, delay the case, delay discovery, and ultimately delay payment. When discovery motions are made they are routinely adjourned for months, bogging the courts down with motions to strike the defendants’ answer that are rarely granted in full.

An example of the effectiveness of motion practice in the municipal parts can be seen from a recent slip and fall case involving leaking water in an under-ground subway stairwell. The New York City Transit Authority [NYCTA] moved for summary judgment before any discovery was undertaken, relying on a discovery exchange stating that there were no leak records and there was no notice of any water condi-tions on the stairs. The lower court granted the motion. The Appellate Division overturned the lower court’s ruling on the grounds that discovery was not com-plete and that relevant records were solely in control of the TA.5 During the ensuing discovery, the plaintiff deposed a station supervisor of the subject station. That supervisor testified that there was a leak on the subject stairway, four steps above the stair where the

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plaintiff fell, and that it had been reported to station maintenance. The supervisor also stated that the leak was recorded in the “Station Supervisor’s Ledger” maintained in the Station Supervisor’s office. This book was not produced before trial.

During trial, the defendant filed a motion in limine citing a case which, upon reviewing the record on appeal, revealed that a fall occurred due to a leak on the same stairs approximately two and a half years earlier, just one step above the stair on which the plaintiff in the current action fell. The fact that it was approximately two and a half years earlier is impor-tant as the Court ordered the NYCTA to produce records only two years back. As a result of this fail-ure to provide discovery, as well as the last-minute dumping of hundreds of pages of previously ordered discovery on plaintiff at trial, the Court granted a mistrial and ordered further discovery.

During renewed discovery, it was revealed that not only does the Transit Authority have leak records and records of transient water conditions, but also a leak inspector. Although the plaintiff had requested all records regarding leaks, there was not a specific request for the leak inspector’s records and therefore there could not be a claim that defendant did not pro-vide those specific records. The Court considered this in denying plaintiff’s motion to strike defendant’s answer, despite the fact that the plaintiff could not possibly have demanded records that she did not know existed. Eventually, the Transit Authority pro-duced partial records including the leak inspector’s reports and the leak inspector for EBT, but did not produce any of the records that the station supervisor testified to authoring.

Plaintiff made three more motions to strike the Transit Authority’s answer. In response to each motion, the defendant claimed that the record requested did not exist despite its own witness’s testimony to the contrary. The Transit Authority even attached an affidavit from the Station Superintendent denying the existence of the records about which the Supervisor had testified on the stand, which did in fact exist. Finally, the Court granted an order conditionally striking the Transit Authority’s answer if it did not produce the records that the station supervisor had identified as containing the notations of the leak. On the day the conditional order expired, plaintiff filed a Notice of Trial for an inquest. The next day the defen-dant moved to vacate that order and annexed a sec-ond affidavit from the same Station Superintendent contradicting the first affidavit by stating not that the records didn’t exist, but that the records requested were no longer available due to regular culling of

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the records. The Court granted defendant’s motion to vacate, but as a sanction for spoliating the records, the Court granted liability on behalf of plaintiff and directed a trial on comparative negligence and dam-ages.

The herculean efforts in litigating this matter all started with the Transit Authority’s motion to dismiss because there were no records or notice. Only at trial did the Court finally understand the breadth and depth of the records that had been withheld.

The information gleaned above was put to use in a case pending in the Transit part in Kings County. There the Transit Authority tried to claim that there was no leak inspector in Kings County, and then that there were no leak inspection records. There was in fact a leak inspector in Kings County and it was elicited at the leak inspector’s deposition that many, if not all, of the people working to maintain the subway stations used the same daily work reports. These reports were the maintenance employee’s assignments for each day; they detail all of the Transit Authority’s work in subway maintenance and at a minimum would give notice of those conditions, even if never repaired. The report form was changed recently, but it was used for years. Although now in a different form, it should be requested in discovery. If you are not getting this form in either paper or electronic format, you are not getting all the discovery available to the extent it is applicable to your case.

The Transit Authority will try to argue that you should only get the computer printout (Trouble Report), but you want the paperwork that the computer entries are allegedly based upon. Following this article, there are lists of some demands that are specific to leaks – we suggest you only use this list to supplement your demands, not to replace them.

B. Case Law and Strategies

The court’s reluctance to strike the Municipality’s answer, and in the alternative to simply preclude tes-timony, is particularly troubling when the defendant fails to produce the records needed to prove a case. Two cases that made headlines in the Law Journal where the First Department finally struck the City’s answers were Elias v. City of New York (2011 NY Slip Op 06330)6 and Henderson-Jones v. City of New York (2011 NY Slip Op 06327). In Henderson-Jones, the First Department ruled that:

Willful and contumacious behavior can be inferred by a failure to comply with court orders, in the absence of adequate excuses (see

Johnson v. City of New York, 188 A.D.2d 302 [1992]; Nunez v. City of New York, 37 A.D.3d 434 [2007]). A party that permits discovery to “trickl[e] in . . . [with a] cavalier attitude . . . should not escape adverse consequence” (Figdor v. City of New York, 33 A.D.3d 560, 561 [2006]).

The court in Figdor, cited in Henderson-Jones, dis-cussed its response to discovery delays:

We take this opportunity to encourage the IAS courts to employ a more proactive approach in such circumstances; upon learning that a party has repeatedly failed to comply with discovery orders, they have an affirmative obligation to take such additional steps as are necessary to ensure future compliance.

The Second Department has also ruled strongly against the City. See Byam v. City of New York, 68 A.D.3d 798 (2nd Dept. 2009). The lower Court in Byam refused to strike the City’s answer, but the Appellate Court reversed, stating inter alia:

Here, the defendants’ willful and contumacious conduct can be inferred from their repeated failures, over an extended period of time, to comply with the discovery orders, together with the inadequate, inconsistent, and unsup-ported excuses for those failures to disclose (see Savin v. Brooklyn Mar. Park Dev. Corp., 61 A.D.3d at 955; Rizzuti v. Laucella, 57 A.D.3d at 757; Martin v City of New York, 46 A.D.3d at 636; Bomzer v. Parke-Davis, Div. of Warner Lambert Co., 41 A.D.3d 522 [2007]; Maiorino v. City of New York, 39 A.D.3d at 602; Wiltos v. 1230 Park Owners, 1 A.D.3d 353, 354 [2003]; Robinson v. Pediatric Assoc. of Irwin Ave., 307 A.D.2d 1029, 1030 [2003]). Accordingly, the plaintiffs’ motion to strike the answer should have been granted

Although these cases support striking the municipal-ity’s answer, they are the exception and not the rule. Esteemed trial attorney Ben Rubinowitz, lecturing at a recent NYSTLI DECISIONS seminar, suggested ask-ing the court for alternative relief should the defen-dant not provide necessary discovery. For example, if you are asking for work records for a cutout and the municipality stalls, ask for a judicial determina-tion that the municipality caused and created the cut. This avoids a finding that the defendant did not willfully and contumaciously withhold the evidence. When there is simply no response, courts often find

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that the behavior is not willful and/or contumacious, a standard that is almost impossible to prove. It is not unreasonable, however, for the court to give you the alternative relief that the discovery you seek would prove the underlying theory.

This will work for almost any motion. It is crucial for the courts to understand that when preclusion ben-efits the offending party, there must be some other course of action to avoid delaying the case for years with discovery motions and conference orders. The municipalities are often rewarded for dilatory tactics by the Appellate Division. When the lower court strikes an answer, the appellate court often overturns the ruling and simply sanctions the defendant and orders more discovery. There have been some recent cases where answers have been stricken but they are few and far between.

TRIALS

The trial experience with municipal defendants is like nothing else in the court system; rarely are new docu-ments, records, witnesses or theories not proffered on the eve of trial, during trial, and even post-trial.

Often municipalities use outside counsel as a foil to shield their failure to turn over discovery. The out-side counsel can’t vouch for what happened before they became involved, but is releasing records at this late stage in good faith. This is pure trial by ambush. The law is well-settled that the retention of trial coun-sel is not a “re-do” of the case for the litigant who, after discovery is complete, seeks another bite of the apple in the prosecution or defense of the case. See Schroeder v. IESI, 24 A.D.3d 180, 805 N.Y.S.2d 70 (1st Dep’t 2005). But too often, judges allow late records or witnesses and direct a deposition in the middle of the trial, making it impossible for the plaintiffs’ attorney to properly prepare the case, which offers additional incentive to the municipality to delay production of records until trial. Whether defense counsel has the information or not is irrelevant; the municipality is a sophisticated defendant and must be held responsible for its action or inaction.

QUALIFIED IMMUNITY

No municipal discovery article would be complete without discussing qualified immunity – we will be addressing that in subsequent issues of the BOP, but until then: if you believe there are issues regarding qualified immunity in your case, relating gener-ally to premises liability (in contrast to governmental employee immunity), you must demand the studies

that the municipality relied upon to set its policy.

GETTING WHAT YOU NEED: THE LISTS

Typical demands and pre-printed discovery orders can leave you with responses from the municipali-ties containing simple statements that the defendant is not in possession of records responsive to the specific demand or request. But if you know exactly what to ask for and what to look for, there might be a truckload of discovery that you are able to obtain.

What follows are the lists of documents that we are aware exist as of the date of this article. Be aware that the same document may be referred to by different names. Note: Some of the demands below have only been recently crafted, and thus the documents have never been exchanged by any municipal defendant. Based upon our experience, we believe these docu-ments to exist and believe they should be exchanged, but we have not seen them yet. These lists are not for all municipal cases, but they should be helpful for many of the more typical cases that you may come across.

A. Subway Stations (Primarily for Falls)

1. Cleaning Report Cleaner, TA.2. Accident Report.3. Customer Accident Report: Unusual Occurrence.4. Station Supervisor’s Log Book.5. Station Supervisor’s “Butcher’s Book.”6. Trouble Call Log for the station. 7. Supervisor’s Transmittal Log/Station Ledger.8. Service Request, A/K/A Trouble Call Report, A/K/A Defect Reports. 9. Production Report from Department of Station Maintenance for the station.10. In-Depth Inspection Report for the Station Superintendent.11. Records from the specifi c department that handles the repair complained of (Daily Work Reports): Leak Inspector; Plumber; Tinsmith; Carpenter; Mason. 12. Foreman’s Production Sheets for Manhattan Station Maintenance.13. Quarterly Station Inspection Reports.

B. Transit – NYC Subway Gap Cases

Traditionally in gap cases, the TA would exchange only the Space Survey (gap measurements) and the Gunn Memo. The Gunn Memo stated, in summary, that the maximum policy for gap tolerances between the edge of the subway station platform and the sub-way door sill or door entrance for a straight track is 6 inches horizontal and 6 inches vertical.

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10. The calculation for determining the gap policy, if any calculations are claimed to be used for determin-ing the policy for the acceptable gap distance on the curved track.11. Documents and studies used to set the curved gap tolerance. If it is alleged that this policy is embodied in a calculation, then the studies and documents used to determine that the policy would be to use this cal-culation when determining curved track tolerances. 12. If the track is curved, the measurements from the geometry car or any other documents that reflect the actual curve radius measurements and the way in which the TA obtained the R value on the space measurement survey.13. The TA maximum gap permitted on a curved track before a gap filler is installed to reduce the gap.14. All documents used to determine when a gap filler should be installed to reduce a gap on a curved track.15. Station Plan.16. Manuals, guidelines and any other writings appli-cable to the gap standards and treatment of gaps.17. Permanent Bulletins regarding gaps to the extent any such bulletins have issued. (At the time of the writing of this article, the authors are not aware of any such bulletins.)

Through the course of extensive discovery and motion practice in several counties, the TA finally exchanged many more documents regarding the subway gaps. It is important to obtain these documents in order to properly litigate these cases.

It should be noted that the G2 is a form that is basi-cally a transit note to the file or the employee’s memo. It is how the TA employees record their observations, and it is usually a written statement that goes beyond the pre-printed form. (We list below those G2s from the titles that we are aware of.)

1. Space measurement surveys (Gap measurements).2. The Gaut memo 1986.3. Gunn Pre Memo & Gunn Memo.4. Smith Investigation 1991.5. Gap Maintenance Policy Review 1991.6. Smith Gap Distance Standard Memo 1991.7. Memorandum of Understanding (MOU) - 2001, 2003, 2006, 2007, 2009 and the most recent one depending on how long after this article is written that you are making these demands.8. All documents and studies that the Transit Authority used to formulate its gap policies. 9. If the track is curved, then the gap policy for a curved track.

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If the accident is investigated by the TA, some other documents we are aware of at the time of this writing, as well as some demands we suggest you make, are as follows:

18. The New York City Transit Department of Subways Incident Report.19. New York City Transit Authority Car Equipment Department Train Trouble Control Request for Assistant Report.20. G-2 (any note to the Transit Authority is on a G-2 form – it’s how they make their own notes) of Train Operator.21. G-2 of Conductor.22. G-2 of TSS (station supervisor). 23. G-2 of Train Dispatcher. 24. New York City Transit Authority Accident Report.25. MTA New York City Transit Division of Stations Customer Accident Report.26. Unusual Occurrence Report.27. MTA New York City Transit Consolidated Summary of Station Operations.28. The names of employees of the defendants who were present at the scene of this occurrence.29. All documents regarding communications from train operator. 30. All documents regarding communications with anyone at the scene that were recorded either before or after the accident. 31. All documents relating to the investigator.33. The name of the investigator.34. All documents relating to any conversations, interviews or statements taken by any employee of the defendants in the regular course of business for this occurrence.35. All documents relating to any conversations, interviews or statements by any employee of the defendants with the plaintiff or plaintiff’s family. 36. Long Island Rail Road Gap Accidents:

a. Nominal Gap Calculation Report;b. Nominal Gap Calculation Plan for the subject railroad station;c. Certified Gap Adjustment Report;d. Maintenance of Equipment records reflecting installation date of threshold plates;e. Non-Employee Accident/Incident Report;f. ARNE Form Accident Report; andg. Gap Mitigation Plan.

C. Transit – “Man Under” Cases (cases where the subway car hits a person on the tracks)

1. All NYCTA and Police Department Reports.72. All photos taken by all parties.

3. G-2s (all transmittals).4. Video surveillance tapes.5. All Sprint (audio) tapes & transcripts.6. NYCTA Train Trouble Report.7. NYCTA Aided Report.8. NYCTA Special Report.9. NYCTA Investigative Report.10. NYCTA Train Delay Report.11. NYCTA Unusual Occurrence Report.12. Station Department Accident Report.13. Event Data Recorder (Emergency Recorder Box).Printouts and Downloads in a readable format for a minimum of the twenty (20) minutes prior to and five (5) minutes post accident for multiple time incre-ments, i.e., 1 second, 10 seconds, 1 minute, 5 minutes, etc.14. Monitoring Diagnostic System (MDS) Printouts and Downloads.15. Station Plan. 16. Track Plans leading up to and including the acci-dent location.17. Signal Plans leading up to and including the acci-dent location.18. Bulletins and General Orders (G.O.s) in effect at the time of the accident.19. Emergency Brake Stopping Distance Tables & Charts, and Supporting Memos.20. All communications immediately before and after the accident that were recorded at any point.21. TA Collision Diagram.22. Division of electrical systems, standards proce-dures manual; train stop layout [signal trip arm].23. Diagram detail train, front end arrangement.24. Diagram detail train, operators cab.

D. Transit – Door Closing on a Passenger

1. MTA New York City Transit Division of Stations Consolidated Summary of Station Operations Covering 24 Hour Period Ending at 2359 Hours (redacted copy).2. N.Y.C.TA Car Equipment Department Train Trouble Control – Request for Assistance Report Train Trouble Report (2 pages).3. New York City Transit Department of Subways Train Incident Report (4 pages).4. Customer Accident Report Unusual Occurrence.5. G-2 prepared by Train Service Supervisors. 6. G-2 for train conductors.7. Electronic copy of the announcement that plays when door opens.8. All photos taken by defendants.9. Video surveillance

a. Video Camerasi. The identifi cation of every camera by num-ber or whatever other system the transit

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authority uses that covered the view of the location of this occurrence.ii. The location of each of the aforesaid cam-eras.iii. Identifi cation of which cameras have live feed and which cameras have video records. iv. The location of the monitors or viewing devices where the live feeds are transmitted. v. The identity of all persons viewing the live feeds of these cameras between ___ and ___ on [the date of the accident].

b. Surveillance tapes. To the extent that there were records of any kind made, then copies of each and every recording for _______.c. To the extent that video recordings were made and subsequently were destroyed, then request copies of the preservation and destruction pol-icies, whether formally written or informally understood.

10. All radio transmissions regarding the incident. 11. NYCTA Investigative Report.12. NYCTA Train Delay Report.13. Bulletins and General Orders (G.O.s) in effect at the time of the accident regarding the opening and closing of subway doors.14. All NYCTA and Police Department Reports.15. The names of employees of the defendants who were present at the scene of this occurrence. 16. All documents relating to the investigator.17. The name of the investigator.18. All documents relating to any conversations, inter-views or statements taken by any employee of the defendants in the regular course of business for this occurrence.19. All documents relating to any conversations, inter-views or statements by any employee of the defen-dants with the plaintiff or plaintiff’s family.20. All documents, records, meeting notes, papers, writings of any kind in any format whether in elec-tronic format or hard copy and studies that the Transit Authority used to formulate its door closing policies including but not limited to timing, speed with which the doors close, automatic retraction, and electronic monitoring, as well as the safety consider-ations for choosing the specific types of doors which do not retract when encountering an obstruction versus doors that do retract when encountering an obstruction during the process of closing. 21. All documents, plans specifications, or any other writings kept in any format whether electronically stored or in hard copy regarding the door closing mechanism including but not limited to the power and force with which the doors close, the speed with which the doors close, the final amount of pressure that is applied by the doors in the closed position, and any and all safety mechanisms designed into the

doors to protect passengers when entering and exit-ing the subway car.

E. Transit Cases – Bus

1. Immediately letter to preserve all black box, video, audio and/or radio transmissions for anyone involved or investigating the bus accident.2. MV104 bus operator.3. Operator's report/trip sheet (with diagram at bot-tom).4. Bus operator's accident/incident report.5. Supervisor’s accident/crime investigation report – often 2-3 pages and there can be additional pages as well.6. Supervisor’s accident/crime form with list of wit-nesses – some of these may be two-sided and often we only get the front side. 7. Supervisor’s Accident Diagram.8. Bus manuals: There are many different manuals; make sure you review the one applicable to your set of facts. There are training manuals and rules and regulations for operation of buses and subways and other manuals or documents covering their parts such as the doors, interlocks, etc.9. Communications: tapes and transcripts between the bus driver and dispatch as well as the supervisors and dispatch.10. Black box information.11. Repair records of bus.12. The name of each and every person from the TA who was at the scene of the incident.13. Demand the name and title of any Transit employ-ee that visited the plaintiff in the hospital.14. Any records generated from that report.15. Memorandum investigator’s report.16. The name of every document generated as a result of this incident.17. ADR (Accident Description Report).18. All documents generated as a result of any dis-ciplinary hearing/action or proceeding including minutes, etc. (not necessarily admissible but discov-erable). 19. All radio communications for anyone involved or investigating the bus accident.20. Bus route map and timetable.21. Bus stopping distance chart.22. Any and all permanent bulletins regarding the operation of the bus, investigation of the accident scene and the conduct of the bus driver both pre and post accident.23. Any and all manuals and/or permanent bulletins regarding reporting or not reporting bus accident to the police.24. BST/PTSB Accident Information Package, which includes:

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- NYCT/MTA Bus/Long Island Bus Division of Safety & Training BST Accident Investigation Report – Including all Attachments such as:

Result of Fitness for Duty TestingB/O Interview StatementAt Scene Investigation ChecklistAccident Diagram

- MTA/NYCTA Accident Description Report- MTA/NYCTA Department of Buses/MTA

Bus Co./Long Island Bus Memorandum of fi ndings.

- Printout of the TA Computer in which the information from the accident was entered. The accident will get a “Brief #.”

F. Police Misconduct, Assault, False Arrest Cases

In police misconduct/false arrest cases, request the identity of all officers at the scene of the arrest (eye-witnesses). This is routinely countered with argu-ments such as “you’ll get that information at the deposition.” Clearly we are entitled to the names of all eyewitnesses to an event. In Kings County, when requesting the memo books (which are part of the case scheduling Order in NY County) at the PC, we have been told you will get them the morning of the deposition and not before. There are other records that are routinely produced at deposition which you need prior to the date of the deposition to properly prepare for the police officer’s deposition. What if the police officer forgets to bring that memo book at the time of the deposition?; you are then forced to go for-ward with the deposition without a crucial piece of evidence that is supposed to be a contemporaneous writing regarding the happening of your incident.

Additionally, often the records you get will lead you to demand other pertinent records which you may want prior to deposing the witness. In one of our recent cases brought for false arrest and mali-cious prosecution by a police officer (Assistant Corp. Counsel told us we had everything we needed prior to the deposition) our client was charged with sale and possession of marijuana. There were no corre-sponding drug vouchers or the accusatory instrument that would indicate exactly what illegal substance it was claimed our client was attempting to sell or that he possessed. A complete and thorough deposition could not be completed without this information but we had not specifically requested it prior to the depo-sition; therefore we did not get it. If we attempt to get a further deposition of the police officer, we may or may not get it depending on the Judge.

The documents that are listed for police false arrest/

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malicious prosecution cases in the New York County scheduling order are: 1) complaint report; 2) com-plaint follow up report; 3) arrest report; 4) memo book entries for incident; 5) online booking report sheet copies of patrol guides; and 6) copies of 911 tapes if in existence and all sprint printouts of 911 calls and transmissions. These are simply the tip of the iceberg for the records that are generated regarding such cases. A more comprehensive list of documents fol-lows below.

1. The personnel files of each Police Officer named in the complaint.2. All records regarding disciplinary actions against said Police Officer(s).3. A copy of all internal memoranda pertaining to the subject incident.4. All arrest records and incident reports relating to the subject incident involving the plaintiff.5. The names and badge numbers of the Police Officers who responded and were involved at any point in the arrest and prosecution of the plaintiff.6. All statements alleged to have been made by the plaintiff, whether the alleged statements were record-ed, written or oral. If the statement was recorded, set forth a true and complete copy of the recording. If the statement was written, provide a true and complete copy of the statement. If the statement was orally made, provide the exact substance of the statement, the name and address of the person or persons to whom the alleged statement was made and the date and place any of the alleged statements were made.7. A copy of any and all recorded conversations between the plaintiff and any of the defendants or any recorded statements made by the plaintiff at all.8. Any and all photographs or depictions of the site of the incident of the underlying event leading to the arrest of the plaintiff.9. Exact copies of all photographs, movies, films, slides or video tapes alleged to portray the plaintiff herein along with the name and address of any and all persons alleged to have obtained said material.10. All video tape recordings, photographs, movies or visual reproductions or descriptions which purport to depict the site, any experiment simulating the acci-dent, or any other relevant condition or circumstances existing at the time of the incident.11. The name and address of any and all witnesses to the occurrence complained of herein.12. The arrest photographs of the plaintiff.13. The prisoner treatment report(s) and/or log con-cerning the plaintiff.14. The aided cards with regard to the police officers involved in this incident.15. The number of complaints filed against police officers in the precinct in the two years preceding the

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subject incident.16. The number of such complaints that were sus-tained.17. Copies of any and all requests for legal assistance by the police officers named in connection with the subject incident.18. Reports prepared in the course of business opera-tions or practices of the defendant(s), their agents, servants and employees including but not limited to:

a. Arrest Report;b. Arrest worksheets;c. Voided arrest reports;e. Accident Reports;f. Complaint Follow Up or Arrest Report

(DD5’s);g. Complaint Follow-up Informational;h. Complaint Report a/k/a (UF61);i. Complaint Report Worksheet;j. Online Booking Sheets;k. Online Booking System Arrest Worksheet 9;l. Criminal Court Complaint/Accusatory

Instrument (A/O Affidavit);m. Detective Notes;n. Unusual Occurrence Report (Detective

Bureau) a/k/a OF 49;o. Memo Book Entries of all police officers;p. UF-I0 (Force Records Cards);q. UF 49 (Unusual Occurrence Report);r. Activity Logs;s. Aided Cards;t. Radio reports, transcripts or recordings,

radio to radio transmissions, and radio to base transmissions;

u. 911 SPRINT Reports;v. OF-250’s (Stop and Frisk Reports);w. DD84 (Ballistics Reports);x. DD 13 (Missing Persons Reports);y. Crime Scene Unit records and all photos as

well;z. Desk Sergeant Blotter Command Log and

Roll Call Log;aa. DATs (Desk Appearance Tickets);bb. Line of Duty Injury Reports;cc. Any reports regarding an internal investiga-

tion by Internal Affairs or any other entity;dd. Property Vouchers;ee. Vouchered Property (Drug Vouchers);ff. Copy of the outside drug evidence envelope

or container;gg. Applicable sections of Patrol Guide;hh. Witness Statements;ii. Police officers’ activity report (PD 439-

1414);jj. NYPD Tactical Plan; andkk. NYPD movement sheet;

19. Personnel records, in possession of the New York City Police Department or the New York City Department of Personnel, with respect to defendant police officers:

a. The complete psychological testing files of each individual defendant police officer, including the tests and the results adminis-tered by the New York City Police Department prior to employment, at employment or at any time during employment;

b. Pre-employment records, including back-ground investigations of each officer;

c. Medical records;d. Central Personnel Index file records or other

similarly defined records;e. Personnel file maintained by the defendant

New York City Police Department or the New York City Department of Personnel;

f. Civilian Complaint Review Board and Civilian Complaint Unit records or other similarly defined records;

g. Internal Affairs or Inspectional Services Division records;

h. Early Warning/Intervention records or other similarly defined records;

i. Requests for disability pension or early retire-ment, particularly if related to psychological reasons;

j. Use of force or reports and records relating to investigation of same;

k. In-service training records, including syllabi and tests and individual scores by officers;

l. Records of requests for fitness for duty evalu-ations and the results of such evaluations; and

m. Psychological Services Unit (PSU) records or other similarly defined records as to each individual defendant police officer.

20. Results of all tests administered to plaintiff (by way of example, but not limited to, lie detector, blood, alcohol, skin, hair and fingernail scrapings) by defendant(s) and their/its agents, servants and/or employees or someone acting on their behalf.21. Full and descriptive list of any property (legal or illegal) taken from the plaintiff at the time of arrest and incarceration; if not arrested and/or incarcerated, then at the time of the contact between plaintiff and the defendant(s) and their/its agents, servants and/or employees or someone acting on their behalf.22. A criminal conviction record search of all wit-nesses and the plaintiff and the results of same.23. Hospital, physician and other medical records and reports of plaintiff while in custody. Any and all records and documents in the possession of New York City Corrections pertaining to the plaintiff.

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G. Parks Department

1. The parks inspection forms. 2. All OPM records.3. All complaints.4. Work orders. 5. Inspection report.6. Daily logs.7. All records of the Prior Notification Unit of the Department of Transportation concerning written defects.8. Prior written notice of claims.9. The 311 documents.

H. City Sidewalk Case

The relevant documents to search for in a City Sidewalk case can be found below. On the eve of pub-lication of this article, it came to the authors’ attention that the City DOT record searchers have access to some additional databases other than those typically searched (MOSAICS). Pursuant to a recent EBT done by NYSTLA Past President Nick Timko, the City has five databases: MOSAICS, 311 Database, DOT Commissioner’s Data Base, Boro Commissioner’s Database and Online Pothole Database. Apparently these databases were not accessible or searched before. They can be now. Additionally, DOT, Office of Sidewalk Management, also has its own data and info.

Practice Tip: In every City Sidewalk Case, even those pending cases where you have done EBTs or closed discovery, you must make a demand for data from these five databases. When the City does searches of these databases, it gets a results screen. For 311 they get an analytics spreadsheet. You should demand a copy of the analytics spread-sheet in every case. On all other database searches, a screen that says what is found or, if nothing has been found, a screen that says nothing has been found. Demand a printout of the search screen. 1. Big Apple Map.2. FITS reports.3. Gang sheets.4. Paving orders.5. HIQA records – Dot inspection report – Parade/marathon etc.6. Block segment search.7. Contracts.8. Permits.9. Cut forms.10. Opening tickets.11. Department of design records.12. Pedestrian ramps department records.13. Permit applications.

14. In-house DOT paving records.15. 311 call logs.16. 311 transmittals.17. DOT corrective action report.18. DEP service request and work order.19. DEP violation inquiry.20. Streets and sidewalks database printout.21. Manuals, guidelines, practice and procedures or writings of any type detailing how, when and where information is transmitted to the DOT from the 311 system, written complaints or any other notices of a defective, dangerous condition of a street or side-walk and how that information is recorded into the log books required to be kept under NYC Admin .Code section 7-201 as well as the municipal law.22. Printouts from the following computer data-bases:

MOSAICS;311 Database with the analytics spreadsheet;DOT Commissioner Database;Boro Commissioner Database; andOnline Pothole Database.

Although the information contained above is com-prehensive, it is in no way meant to be complete. It should give the reader a good base with which to force the municipal defendants to disclose the information necessary to prosecute these types of cases. We are sure that there are documents that have been left out, unknown to the authors at the time of this writing or with alternate titles. We therefore suggest that you keep your eyes and ears open during the pendency of the case and make sure to fill in any gaps that you find in the above lists of documents.

1 The authors make no representation that the records or documents that are listed here are entirely comprehensive. We only know what we have been able to unearth. In the last year we have learned about numerous new records that have never been disclosed before and we encourage everyone to keep plugging away, demanding any and all pertinent records. The lists of documents at the end of the article come from our litigation experience and we have shamelessly taken from any of our colleagues who provided us with information as well. 2 This also applies to prior written notice as the same language is in there despite the 15 day requirement of the prior written notice statute. 3 This transcript can be obtained by contacting NYSTLA.4 The defendants may argue that this type of affi davit is a sanction, but it is not, it is a tool that allows the Courts and the parties to rely upon, , in order to make

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sure that the appropriate records have been searched, that the person doing the search looked in the right places and preserves the integrity of the process. If a person with no knowledge conducts a search, doesn’t know where to look and is unable to extract pertinent relevant records, that person can tell the municipal attorneys that a full search was conducted and no records were elicited., which would technically be accurate. This type of affi davit protects the integrity of the process and should apply to all record searchers not just municipal.5 Juana Baez-Sharp v. N.Y.C.T.A., 38 A.D.3d 229 (1st Dept. 2007). 6 This case had already been stricken once and was overturned on appeal and sent down to litigate the case on the merits with only a slap on the wrist to the City. Upon failing to turn over discovery again and Yeoman’s work by Elias’ attorney Charles Gershbaum, the answer was stricken again and this time the First department upheld the strike. 7 Note that the police reports are NYCPD documents which you may have to get directly from the NYCPD. This includes Aided Reports, Investigation Reports, Memo Book Notes, Witness Statements, Logs and Photos (if any).

David Roth is a member of the Board of Directors of the New York State Trial Lawyers Association. He is co-chair of the Premises Committee, Website Committee and Auto Committee. He has authored several prac-tice pieces ranging from topics on traumatic brain injury through deposing the municipal record keeper. His practice consists of general personal injury prac-tice concentrating on heavy Traumatic Brain Injury (TBI) cases as well as complicated municipal and Transit liability. He also has an active wage and hour class action practice representing employees.

Josh Stein is a founding member of Greenberg & Stein, P.C. He is the lead trial attorney at the firm and heads the litigation department. Mr. Stein has extensive experience representing injured people in automobile accident cases, trip-and-fall accident cases, work-related accident cases, toxic tort (lead poisoning) cases, police brutality cases and cases against municipalities. Mr. Stein has lectured to members of the New York State Trial Lawyers on issues such as Discovery in Automobile Accident Cases and Discovery in Transit Authority Cases.

Become a writer!Bill of Particulars articles are a great way to show New York’s trial community that your firm has a high level of sophisticated experience and expert practice area knowledge. Share your expertise by writing an article or a column!

Please contact the BOP Editor-in-Chief David S. Ratner with articles or ideas at info@nystla.org.