Social Media

Vasquez-Santos v Mathew, 2019 NY Slip Op 00541 [1st Dept. 2019]

Private social media information can be discoverable to the extent it “contradicts or conflicts with [a] plaintiff’s alleged restrictions, disabilities, and losses, and other claims” (Patterson v Turner Const. Co., 88 AD3d 617, 618 [1st Dept 2011]). Here, plaintiff, who at one time was a semi-professional basketball player, claims that he has become disabled as the result of the automobile accident at issue, such that he can no longer play basketball. Although plaintiff testified that pictures depicting him playing basketball, which were posted on social media after the accident, were in games played before the accident, defendant is entitled to discovery to rebut such claims and defend against plaintiff’s claims of injury. That plaintiff did not take the pictures himself is of no import. He was “tagged,” thus allowing him access to them, and others were sent to his phone. Plaintiff’s response to prior court orders, which consisted of a HIPAA authorization refused by Facebook, some obviously immaterial postings, and a vague affidavit claiming to no longer have the photographs, did not comply with his discovery obligations. The access to plaintiff’s accounts and devices, however, is appropriately limited in time, i.e., only those items posted or sent after the accident, and in subject matter, i.e., those items discussing or showing defendant engaging in basketball or other similar physical activities (see Forman v Henkin, 30 NY3d 656, 665 [2018]; see also Abdur-Rahman v Pollari, 107 AD3d 452, 454 [1st Dept 2013]).


Harris v Kay, 2019 NY Slip Op 00044 [1st Dept. 2019]

The court did not abuse its discretion in striking the complaint, given plaintiff’s repeated, willful and contumacious refusals to provide discovery and to comply with court’s orders over an approximately eight-year period (see McHugh v City of New York, 150 AD3d 561, 562 [1st Dept 2017]; Fish & Richardson, P.C. v Schindler, 75 AD3d 219, 221-222 [1st Dept 2010]; see generally Merrill Lynch, Pierce, Fenner Smith, Inc. v Global Strat Inc., 22 NY3d 877, 880 [2013]). Even if plaintiff’s response to defendants’ first set of interrogatories could be considered “timely” pursuant to the court’s August 28, 2013 order, despite that the interrogatories were served more than six years prior, the response certainly does not “evince[] a good-faith effort to address the requests meaningfully” (Kihl v Pfeffer, 94 NY2d 118, 123 [1999]).

Brown v Montefiore Med. Ctr., 2019 NY Slip Op 00226 [1st Dept. 2019]

The court’s September 28, 2015 order was predicated on the motion and cross motion by the defendants, the underlying issues of which had already been fully resolved by the parties’ so-ordered stipulation, dated August 4, 2015, issued after a preliminary conference. At the time of the court’s September 28th conditional preclusion order, there was no motion pending, and no request for any relief from the defendants. Given the circumstances, the court should have granted plaintiff’s motion to vacate the judgment. However, this in no way condones plaintiff’s counsel’s clearly dilatory behavior, which, based on the pattern evinced by the record, was willful.

The bold is mine.

Hopkins v City of New York, 2019 NY Slip Op 00388 [1st Dept. 2019]

The parties suspended scheduling of the deposition of the City’s witness on January 14, 2014 when plaintiff withdrew its request for an EBT while other discovery disputes were resolved. Thus, the court orders prior to January 14, 2014 do not support the imposition of sanctions. We agree with Supreme Court that the City’s noncompliance with subsequent disclosure orders did not give rise to an inference of willful and contumacious conduct. Given that there does not appear to be an actual prejudice to plaintiff, the court was within its discretion to provide defendant with one additional opportunity to submit to depositions before striking its answer (Figueroa v City of New York, 129 AD3d 596, 597 [1st Dept 2015]).

We further note that at the time this motion was pending, the City offered to produce the witness at issue.

Williams v Suttle, 2019 NY Slip Op 00163 [2d Dept. 2019]

The drastic remedy of dismissing a complaint for a plaintiff’s failure to comply with court-ordered discovery is warranted where a party’s conduct is shown to be willful and contumacious (see Harris v City of New York, 117 AD3d 790Almonte v Pichardo, 105 AD3d 687, 688; Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d 201, 210). The willful and contumacious character of a party’s conduct can be inferred from either (1) the repeated failure to respond to demands or comply with court-ordered discovery, without a reasonable excuse for these failures, or (2) the failure to comply with court-ordered discovery over an extended period of time (see Candela v Kantor, 154 AD3d 733, 734; Pesce v Fernandez, 144 AD3d 653, 654; Gutman v Cabrera, 121 AD3d 1042, 1043; Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d at 210).

Here, the willful and contumacious character of the plaintiffs’ actions can be inferred from their repeated failures to comply with the defendant’s notices to appear for depositions and the deadlines set forth in the compliance conference orders over an extended period of time (see Wolf v Flowers, 122 AD3d 728, 729; Matone v Sycamore Realty Corp., 87 AD3d 1113, 1114). Furthermore, the plaintiffs failed to provide an adequate explanation for their repeated failures to comply with court-ordered discovery. While the plaintiffs established that the medical condition of Lawrey, who is a resident of the State of Georgia, required her to avoid travel and that her deposition could be conducted via live video conferencing (see Duncan v 605 Third Ave., LLC, 49 AD3d 494, 496), they did not provide any explanation for their failure to produce Williams, a resident of Westchester County, for a deposition.

Contrary to the plaintiffs’ contention, the defendant, who had first noticed depositions after serving her answer, had priority of depositions (see CPLR 3106[a]; Scalone v Phelps Mem. Hosp. Ctr., 184 AD2d 65, 76-77), and the filing of an amended complaint did not automatically stay discovery.

In any event, when the plaintiffs failed to appear for depositions within the time specified in the conditional order of dismissal, the conditional order became absolute (see Corex-SPA v Janel Group of N.Y., Inc., 156 AD3d at 602; Wei Hong Hu v Sadiqi, 83 AD3d 820, 821; Matter of Denton v City of Mount Vernon, 30 AD3d 600). To be relieved of the adverse impact of the conditional order directing dismissal of the complaint, the plaintiffs were required to demonstrate a reasonable excuse for their failure to appear for depositions and that their cause of action was potentially meritorious (see Gibbs v St. Barnabas Hosp., 16 NY3d 74, 80; Kirkland v Fayne, 78 AD3d 660, 661; Lerner v Ayervais, 16 AD3d 382Smith v Lefrak Org., 96 AD2d 859, affd 60 NY2d 828). The plaintiffs failed to demonstrate a reasonable excuse for their failure to appear for depositions on or before February 29, 2016.

Substitute Expert 3101(d)

Geffner v Mercy Med. Ctr., 2018 NY Slip Op 08280 [2d Dept. 2018]

Furthermore, contrary to the plaintiff’s contention, the Supreme Court did not improvidently exercise its discretion in precluding her from proffering the testimony of a “substitute expert” at trial. Pursuant to CPLR 3101(d)(1)(i), “where a party for good cause shown retains an expert an insufficient period of time before the commencement of trial to give appropriate notice thereof, the party shall not thereupon be precluded from introducing the expert’s testimony at the trial solely on grounds of noncompliance with this paragraph” (emphasis added). “A determination regarding whether to preclude a party from introducing the testimony of an expert witness at trial based on the party’s failure to comply with CPLR 3101(d)(1)(i) is left to the sound discretion of the court” (McGlauflin v Wadhwa, 265 AD2d 534, 534). Here, since the plaintiff offered only a vague excuse for the unavailability of the intended expert, without offering any details as to when the plaintiff learned of that expert’s unavailability, she failed to establish good cause to offer the testimony of the “substitute expert” (see Banister v Marquis, 87 AD3d 1046Caccioppoli v City of New York, 50 AD3d 1079Klatsky v Lewis, 268 AD2d 410, 411). Moreover, the plaintiff had previously been unprepared to proceed with trial due to, inter alia, the unavailability of experts (see Fava v City of New York, 5 AD3d 724, 725).


McMahon v New York Organ Donor Network, 2018 NY Slip Op 03820 [1st Dept. 2018]

Disclosure of these records is not prohibited by federal law. Although defendant is not a covered entity under the Health Insurance Portability and Accountability Act (HIPAA) (see 45 CFR 160.102; 160.103), it is authorized to receive medical records from covered entities "for the purpose of facilitating organ, eye or tissue donation and transplantation" (45 CFR 164.512[h]). It is also required to abide by HIPAA's privacy protections pursuant to New York Public Health Law (PHL) § 4351(8), which provides, "Any employee or agent of a federally designated organ procurement organization, eye bank or tissue bank . . . shall be held to the same standard of confidentiality as that imposed on employees of the hospital." However, because the subject disclosure would be made in the course of a judicial proceeding and pursuant to a qualified protective order, it is authorized under HIPAA (see 45 CFR 164.512[e][1][ii][B], [iv], [v]).

Nevertheless, PHL § 4351(8) renders defendant's documents subject to the protections of the physician-patient privilege set forth at CPLR 4504. This privilege is personal to the patient and is not terminated by death (Chanko v American Broadcasting Cos. Inc., 27 NY3d 46, 53 [2016]). It has not been expressly or implicitly waived in this case by the donors' next of kin (see Perez v Fleischer, 122 AD3d 1157, 1159 [3d Dept 2014], lv dismissed 25 NY3d 985 [2015]). However, plaintiff demonstrated that the information in the medical records is material and necessary to his claim and that "the circumstances warrant overcoming the privilege and permitting discovery of the records with all identifying patient information appropriately redacted to protect patient confidentiality" (see Seaman v Wyckoff Hgts. Med. Ctr., Inc., 25 AD3d 596, 597 [2d Dept 2006]; accord Cole v Panos, 128 AD3d 880, 883 [2d Dept 2015]). Allowing disclosure under these circumstances is consistent with the public policy underlying the whistleblower statute, i.e., to encourage employees to report hazards to supervisors and the public (see Leibowitz v Bank Leumi Trust Co. of N.Y., 152 AD2d 169, 176 [2d Dept 1989]).

Facebook Discovery

Forman v Henkin, 2018 NY Slip Op 01015 [2018]

New York discovery rules do not condition a party's receipt of disclosure on a showing that the items the party seeks actually exist; rather, the request need only be appropriately tailored and reasonably calculated to yield relevant information. Indeed, as the name suggests, the purpose of discovery is to determine if material relevant to a claim or defense exists. In many if not most instances, a party seeking disclosure will not be able to demonstrate that items it has not yet obtained contain material evidence. Thus, we reject the notion that the account holder's so-called "privacy" settings govern the scope of disclosure of social media materials.

That being said, we agree with other courts that have rejected the notion that commencement of a personal injury action renders a party's entire Facebook account automatically discoverable (see e.g. Kregg v Maldonado, 98 AD3d 1289, 1290 [4th Dept 2012] [rejecting motion to compel disclosure of all social media accounts involving injured party without prejudice to narrowly-tailored request seeking only relevant information]; Giacchettosupra, 293 FRD 112, 115; Kennedy v Contract Pharmacal Corp., 2013 WL 1966219, *2 [ED NY 2013]). Directing disclosure of a party's entire Facebook account is comparable to ordering discovery of every photograph or communication that party shared with any person on any topic prior to or since the incident giving rise to litigation — such an order would be likely to yield far more nonrelevant than relevant information. Even under our broad disclosure paradigm, litigants are protected from "unnecessarily onerous application of the discovery statutes" (Kavanaughsupra, 92 NY2d at 954).

Rather than applying a one-size-fits-all rule at either of these extremes, courts addressing disputes over the scope of social media discovery should employ our well-established rules — there is no need for a specialized or heightened factual predicate to avoid improper "fishing expeditions." In the event that judicial intervention becomes necessary, courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account. Second, balancing the potential utility of the information sought against any specific "privacy" or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials. In a personal injury case such as this it is appropriate to consider the nature of the underlying incident and the injuries claimed and to craft a rule for discovering information specific to each. Temporal limitations may also be appropriate — for example, the court should consider whether photographs or messages posted years before an accident are likely to be germane to the litigation. Moreover, to the extent the account may contain sensitive or embarrassing materials of marginal relevance, the account holder can seek protection from the court (see CPLR 3103[a]). Here, for example, Supreme Court exempted from disclosure any photographs of plaintiff depicting nudity or romantic encounters.

Plaintiff suggests that disclosure of social media materials necessarily constitutes an unjustified invasion of privacy. We assume for purposes of resolving the narrow issue before us that some materials on a Facebook account may fairly be characterized as private [FN5]. But even private materials may be subject to discovery if they are [*5]relevant. For example, medical records enjoy protection in many contexts under the physician-patient privilege (see CPLR 4504). But when a party commences an action, affirmatively placing a mental or physical condition in issue, certain privacy interests relating to relevant medical records — including the physician-patient privilege — are waived (see Arons v Jutkowitz, 9 NY3d 393, 409 [2007]; Dillenbeck v Hess, 73 NY2d 278, 287 [1989]). For purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.

Applying these principles here, the Appellate Division erred in modifying Supreme Court's order to further restrict disclosure of plaintiff's Facebook account, limiting discovery to only those photographs plaintiff intended to introduce at trial [FN6]. With respect to the items Supreme Court ordered to be disclosed (the only portion of the discovery request we may consider), defendant more than met his threshold burden of showing that plaintiff's Facebook account was reasonably likely to yield relevant evidence. At her deposition, plaintiff indicated that, during the period prior to the accident, she posted "a lot" of photographs showing her active lifestyle. Likewise, given plaintiff's acknowledged tendency to post photographs representative of her activities on Facebook, there was a basis to infer that photographs she posted after the accident might be reflective of her post-accident activities and/or limitations. The request for these photographs was reasonably calculated to yield evidence relevant to plaintiff's assertion that she could no longer engage in the activities she enjoyed before the accident and that she had become reclusive. It happens in this case that the order was naturally limited in temporal scope because plaintiff deactivated her Facebook account six months after the accident and Supreme Court further exercised its discretion to exclude photographs showing nudity or romantic encounters, if any, presumably to avoid undue embarrassment or invasion of privacy.

In addition, it was reasonably likely that the data revealing the timing and number of characters in posted messages would be relevant to plaintiffs' claim that she suffered cognitive injuries that caused her to have difficulty writing and using the computer, particularly her claim that she is painstakingly slow in crafting messages. Because Supreme Court provided defendant no access to the content of any messages on the Facebook account (an aspect of the order we cannot review given defendant's failure to appeal to the Appellate Division), we have no occasion to further address whether defendant made a showing sufficient to obtain disclosure of such content and, if so, how the order could have been tailored, in light of the facts and circumstances of this case, to avoid discovery of nonrelevant materials.[FN7]

In sum, the Appellate Division erred in concluding that defendant had not met his threshold burden of showing that the materials from plaintiff's Facebook account that were ordered to be disclosed pursuant to Supreme Court's order were reasonably calculated to contain evidence "material and necessary" to the litigation. A remittal is not necessary here because, in opposition to the motion, plaintiff neither made a claim of statutory privilege, nor offered any other specific reason — beyond the general assertion that defendant did not meet his threshold burden — why any of those materials should be shielded from disclosure.

Accordingly, the Appellate Division order insofar as appealed from should be reversed, with costs, the Supreme Court order reinstated and the certified question answered in the negative.

Medical Reports: 22 NYCRR 202.17 [Ct. App.]

CPLR 3121(a)

CPLR 3101

CPLR 4411

22 NYCRR 202.17(b)(1)

Hamilton v Miller, 2014 NY Slip Op 04230 [2014]

In most personal injury cases, disclosure under this rule is straightforward. The injured plaintiff goes to the doctor for diagnosis and treatment. The doctor drafts a report. The plaintiff turns over the report to the defendant.

This case is more complicated. Plaintiffs allegedly suffered lead poisoning as children. Now adults, plaintiffs allege that their childhood exposure to lead caused them numerous injuries. It appears from the dearth of medical evidence in the record that plaintiffs may never have been treated for or diagnosed with many of the alleged injuries. This raises the question of what plaintiffs must disclose in order to comply with rule 202.17 (b) (1).

Plaintiffs argue that the rule requires them to turn over only those reports that currently exist from providers who have "previously treated or examined" them. They argue that they are not required to document or create medical evidence of every alleged injury. To the extent that plaintiffs are arguing that the rule does not obligate them to hire a medical provider to examine them and create a report solely for purposes of the litigations, we agree. Requiring a personal injury plaintiff to hire a medical professional to draft a report purely to satisfy 22 NYCRR 202.17 (b) (1) could make it prohibitively expensive for some plaintiffs to bring legitimate personal injury suits. Some plaintiffs may not be able to afford a medical examination or may not even have access to a doctor. Plaintiffs therefore need only produce reports from medical providers who have "previously treated or examined" them.

To the extent, however, that plaintiffs claim that they need to turn over only those medical reports that currently exist, we disagree. The rule obligates plaintiffs to provide comprehensive reports from their treating and examining medical providers — the reports "shall include a recital of the injuries and conditions as to which testimony will be offered at the trial" (22 NYCRR 202.17 [b] [1]) [emphasis added]). Plaintiffs therefore cannot avoid disclosure simply because their treating or examining medical providers have not drafted any reports within the meaning of rule 202.17 (b) (1) (see Ciriello v Virgues, 156 AD2d 417, 418 [2d Dept 1989] ["[T]he fact that a report never was prepared does not obviate the party's obligation under the rules"]; Davidson v Steer/Peanut Gallery, 277 AD2d 965, 965 [4th Dept 2000]; Pierson v [*3]Yourish, 122 AD2d 202, 203 [2d Dept 1986]). If plaintiffs' medical reports do not contain the information required by the rule, then plaintiffs must have the medical providers draft reports setting forth that information (see id.)[FN2]. If that is not possible, plaintiffs must seek relief from disclosure and explain why they cannot comply with the rule (see 22 NYCRR 202.17 [j]).

We conclude therefore that Supreme Court abused its discretion in requiring plaintiffs to provide medical evidence ofeach alleged injury or otherwise be precluded from offering evidence of that injury at trial. Supreme Court's motivation for granting that relief is understandable. Plaintiffs' counsel filed boilerplate bills of particulars and then did not disclose medical records substantiating the alleged injuries. To that end, plaintiffs should amend their respective bills of particulars to reflect those injuries actually sustained. Nonetheless, although Supreme Court had wide, inherent discretion to manage discovery, foster orderly proceedings, and limit counsel's gamesmanship (see Kavanagh v Ogden Allied Maintenance Corp., 92 NY2d 952, 954 [1998]), the ordered relief exceeded the court's power.

Supreme Court also granted relief beyond that contemplated by rule 22 NYCRR 202.17 (b) (1) by requiring plaintiffs to produce, prior to the defense examination, a medical report causally relating plaintiffs' injuries to lead paint exposure or be precluded from offering proof of such injuries at trial. The rule requires that the medical reports "include a recital of the injuries and the conditions as to which testimony will be offered at the trial, . . . including a [*4]description of the injuries, a diagnosis, and a prognosis." There is no requirement that medical providers causally relate the injury to the defendant's negligence or, in this case, the lead paint exposure.

If determining causation requires evidence from a medical professional, causation is more appropriately dealt with at the expert discovery phase and pursuant to CPLR 3101 (d). If defendants wish to expedite expert discovery, they can move in Supreme Court for amendment of the scheduling orders. Should plaintiffs fail to produce any evidence of causation, then defendants can move for and obtain summary judgment.

Supreme Court properly denied plaintiff Hamilton's CPLR 4511 motion to take judicial notice of 42 USC § 4851. That provision contains Congress's findings justifying legislation aimed at reducing lead — findings such as: "at low levels, lead poisoning in children causes intelligence quotient deficiencies, reading and learning disabilities, impaired hearing, reduced attention span, hyperactivity, and behavior problems;" and "the Federal Government must take a leadership role in building the infrastructure—including an informed public, State and local delivery systems, certified inspectors, contractors, and laboratories, trained workers, and available financing and insurance—necessary to ensure that the national goal of eliminating lead-based paint hazards in housing can be achieved as expeditiously as possible" (42 USC § 4851 [2], [8]). Hamilton apparently sought judicial notice of the federal provision in order to avoid having to prove general causation — that lead paint exposure can cause some or all of his alleged injuries.

CPLR 4511 allows a court to take notice of federal and foreign state law, not facts, that is relevant to a proceeding (CPLR 4511; Pfleuger v Pfleuger, 304 NY 148, 151 [1952]). The congressional findings in support of legislation seeking to reduce amounts of lead in homes, though codified in a federal statute, are not "law" that is relevant to Hamilton's case. Taking judicial notice of them under CPLR 4511 would be inappropriate.

What Hamilton really wanted was to have Supreme Court take judicial notice of the fact that exposure to lead paint can cause injury. "To be sure, a court may take judicial notice of facts which are capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy" (People v Jones, 73 NY2d 427, 431 [1989] [internal quotation marks omitted]). But general causation, at least in scientifically complex cases, is not such a fact. Hamilton needs to prove, through scientific evidence, that exposure to lead-based paint can cause the injuries of which he complains (see Parker v Mobile Oil Corp., 7 NY3d 434, 448 [2006]). He cannot avoid that burden simply because Congress, in statutory preambles, has opined on the dangers of lead-based paint.Accordingly, in each case, the order of the Appellate Division should be modified, without costs, by remitting to Supreme Court for further [*5]proceedings in accordance with this opinion and, as so modified, affirmed, and the certified question answered in the negative.

Cant’t hide investigation behind attorney client privilege

CPLR 3101

National Union Fire Ins. Co. of Pittsburgh, Pa. v TransCanada Energy USA, Inc., 2014 NY Slip Op 01283 [1st Dept. 2014] 

The motion court properly found that the majority of the documents sought to be withheld are not protected by the attorney-client privilege or the work product doctrine or as materials prepared in anticipation of litigation. The record shows that the insurance companies retained counsel to provide a coverage opinion, i.e. an opinion as to whether the insurance companies should pay or deny the claims. Documents prepared in the ordinary course of an insurer's investigation of whether to pay or deny a claim are not privileged, and do not become so " merely because [the] investigation was conducted by an attorney'" (see Brooklyn Union Gas Co. v American Home Assur. Co., 23 AD3d 190, 191 [1st Dept 2005]).


attorney drafted 3101(d)

CPLR 3101(d)

Bacani v Rosenberg, 2014 NY Slip Op 00737 [1st Dept. 2014]

Upon renewal, the motion court properly dismissed the action as against Rosenberg. As this Court previously found, the opinions of plaintiffs' expert, Dr. Harrigan, failed to raise a triable issue, and plaintiffs' submission of an attorney-drafted CPLR 3101(d) expert disclosure averring that an expert pathologist would testify concerning causation is not evidentiary proof in admissible form sufficient to defeat the subject motion for summary judgment (see e.g. Velasco v Green-Wood Cemetery, 48 AD3d 271, 272 [1st Dept 2008]). Furthermore, plaintiffs' argument that the claims against Nanda and Rosenberg differ is unavailing because, if Dr. Nanda was not [negligent in failing to order additional testing, Dr. Rosenberg could not be negligent in failing to ask Dr. Nanda to order such testing.

Emphasis mine.

CPLR 2001 procedural irregularities and CPLR 3101 overbroad discovery

CPLR 2001

CPLR 3101

Lawrence v Kennedy, 2014 NY Slip Op 00329 [2nd Dept. 2014]

Contrary to the plaintiff's contentions, the Supreme Court properly considered the firm's motion for leave to reargue that branch of its prior motion which was to compel the production of certain documents despite certain procedural irregularities, as those irregularities did not prejudice the decedent (see CPLR 2001; Jones v LeFrance Leasing L.P., 81 AD3d 900, 903; Piquette v City of New York, 4 AD3d 402, 403). Further, the Supreme Court providently exercised its discretion in granting leave to reargue (see CPLR 2221[d][2]; Singleton v Lenox Hill Hosp., 61 AD3d 956, 957; Marini v Lombardo, 17 AD3d 545, 546; Carrillo v PM Realty Group, 16 AD3d 611, 611).

Upon reargument, however, the Supreme Court should have denied that branch of the firm's motion which was to compel the production of the documents, including certain documents removed from the firm's offices by the plaintiff. In this regard, the firm's document requests, many of which sought the decedent's personal financial information, were overly broad, and sought irrelevant or confidential information (see Conte v County of Nassau, 87 AD3d 559, 560; Board of Mgrs. of the Park Regent Condominium v Park Regent Assoc., 78 AD3d 752, 753; Pugliese v Mondello, 57 AD3d 637, 640; Benfeld v Fleming Props., LLC, 44 AD3d 599, 600; Bell v Cobble Hill Health Ctr., Inc., 22 AD3d 620, 621; Latture v Smith, 304 AD2d 534, 536).

Emphasis is mine.


CPLR 3101 Additional discovery of financial documents was neither material nor necessary

CPLR 3101(a)

Hatter v Myerson, 2014 NY Slip Op 00326 [2nd Dept. 2014]

Contrary to the appellant's contention, the Supreme Court providently exercised its discretion in concluding that the additional discovery of financial documents sought by the appellant was neither material nor necessary in the defense of the action (see CPLR 3101[a]; Constantino v Dock's Clam Bar & Pasta House, 60 AD3d 612).

Decision doesnt give anything in the way of facts, but it might prove useful as a cite.

Pecile v Titan Capital Group, LLC, 2014 NY Slip Op 00425 [1st Dept. 2014]


Regarding defendants' demand for access to plaintiffs' social media sites, they have failed to offer any proper basis for the disclosure, relying only on vague and generalized assertions that the information might contradict or conflict with plaintiffs' claims of emotional distress. Thus, the postings are not discoverable (see Tapp v New York State Urban Dev. Corp., 102 AD3d 620 [1st Dept 2013]).


Lastly, defendants correctly assert that prior criminal convictions and pleas of guilty are relevant and discoverable (CPLR 4513; see also Sansevere v United Parcel Serv., 181 AD2d 521 [*2][1st Dept 1992]). However, "[a] youthful offender adjudication is not a judgment of conviction for a crime or any other offense" (Criminal Procedure Law § 720.35[1]). Thus, defendants cannot compel disclosure of the details of a youthful offense, since that would "contravene[] the goals envisioned by the youthful offender policy" (State Farm Fire & Cas. Co. v Bongiorno, 237 AD2d 31, 36, [2d Dept 1997]; see also Auto Collection, Inc. v C.P., 93 AD3d 621, 622 [2d Dept 2012]). Nothing in the record suggests that the evidence sought would serve as collateral estoppel to the claim, or is relevant in some other manner that would serve as an exception to that general rule (see Green v Montgomery, 95 NY2d 693 [2001]).