Bianco v North Fork Bancorporation

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Bianco v North Fork Bancorporation 2012 NY Slip Op 32611(U) October 10, 2012 Sup Ct, New York County Docket Number: 107069/2010 Judge: Doris Ling-Cohan Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SCANNEDON 1011612012 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: p: /2.> /,d- L JT,y ". ~ - & L & Y d 7 . PART Justice 3 L7 ' index Number 107069/2010 INDEX NO. BIANCO, ANTHONY F. vs . NORTH FORK BANCORPORATION SEQUENCE NUMBER : 001 MOTION DATE MOTION SEQ. NO. COMPEL I _ The following papers, numbered 1 to , were read on this motion to/for Notice of MotionlOrder to Show Cause -Affidavits ; - Exhibits I CHECK ONE: ..................................................................... . Y. INo@). /. -2 INo(s). 1-31 I NOW. s- Answering Affidavits - Exhibits Replying Affidavits Upon the foregoing papers, it is ordered that this motion & c?S,,?i7/7 1 2 u I' t ,d d CASE DISPOSED ........................... MOTION IS: GRANTED CHECK IF APPROPRIATE: ................................................ 0SETTLE ORDER GJ-N~N-FINAL DISPOSITION nGRANTEDIN PART nOTHER 2. CHECK AS APPROPRIATE: DENIED 3. 0SUBMIT ORDER E]FIDUCIARY APPOINTMENT 0REFERENCE DO NOT POST [* 2] Plaintiff, -against- NORTH FORK BANCORPORATION, INC., et al. , Defendants. Motion Seq. No.: 001 DECISION/ORDER This action was commenced by plaintiff to recover damages from injuries he allegedly sustained on June 7,2007, during the course of his employment, as an electrical apprentice, with Jordan Daniels Electric. According to his bill of particulars, the extensive injuries he sustained "have substantially preventcd plaintiff from enjoying the normal fruits of activities, social, educational and econoinic ...". Exh. C, Notice of Motion, 719. Dcfendants/third-party plaintiffs have filed the within motion to compel plaintiff to supply the following discovery: (1) a duly executed authorization permitting defendantdthird-party . plaintiffs acccss to plaintiffs Facebook account and all available data, past and present, or, in the alternative to produce the complete Faccbook record, including all pictures, videos, wall posts and correspondence to the Court for an in camera inspection; (2) the address of plaintiffs mother and fdther in Florida, and the address of plaintiff's sister; (3) HIPAA compliant authorizations to obtain copies of plaintiff's incdical records for five years prior to and including the date of the subject accident; and (4) authorizations to obtain plaintifx's social sccurity ear ings information.' P In support of thc demand for plaintiffs Facebook account, defendantdthird-party,plaintiffs argue ' It is noted that defendantdthird-party plaintiffs have withdrawn their demand for an authorization to obtain the non-privileged portion of the files from the attorneys Weiss, JVexler & Wornow. i : 1 [* 3] that such information is relevant in light of the allegations in plaintiff s bill ofparticulars and plaintiffs own testimony at his deposition as to the alleged impact of the claimed accident and his alleged injuries, on his ability to enjoy his normal activitics. As to their request for the addresses of plaintifl s family members, defendantshhird-party plaintiffs argue that such information is discoverable in that plaintiff testified that such family members are allegedly witnesses to how plaintiffs injuries affected his life, both financial, as well as his family relations, which plaintiff testified have been damaged as a rcsult of the subject accident. As to the request for plaintiffs medical records for five years prior tu the accident, defendantshhirdparty plaintiffs argue that such information is rclevant and material to the defense of this action. Defcndants/third-party plaintiffs also maintain that plaintiff s social security carnings inlorination is discoverablc. In opposition, plaintiff argues that defendmtdthird-party plaintiffs demands are improper as they have failed to provide a factual basis to show that the information is material and rclevant to this lawsuit and that defendantslthird-party plaintiffs arc on a iishing expedition. Discovery Standard CPLR $3 101 providcs for full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.)) Regardless of whether or not the subjcct discovery will be determined at trial to be admissible, it shall be exchanged if it is sufficiently related to the issues in litigation to make the effort to obtain [them] in preparation for trial reasonable... . Allen v. Crowell-Collier Pub. Co., 21 NY2d 403, 406-07 (1968)(citation omitted); see also ,Jonsephs v. Oliver, 48 AD2d 688 (2nd Dept 1975). Further, pretrial disclosure extends nul only to proof that is admissible hut also to matters that may lead to the disclosure of admissible proof . Mutter ofNew Yovk County DES Litigation v. Eli Lilly d C o., 171 AD2d 119, 123 (lstDept 199l)(ernphasis supplied). The test for CPLR $3101 (a) purposes is usefulness and reason ; disclosure will be permitted where the information sought concerns the controversy in issue and will assist in the preparation for trial. Id; see also Williams Real Estate, 2 [* 4] Co., Inc. v. Viking Penguin, Inc., 2 16 AD2d 27,28 (1 Dept 1995); Conway v. Bayley Seton Hospital, 104 AD2d 1018, 1019 (1st Dept 1984). Facebook Based upon the above liberal discovery standard, and plaintiff s deposition testimony, as well as his broad claims as to the alleged impact of the subject accident to his life style and alleged loss of enjoyment of life claim, that portion of defendants motion which seeks to compel the production of plaintiffs Facebook content is granted to the following extent. It is ORDERED that plaintirf shall produce plaintiffs Facebook content2 ,for in camera review,to be supervised by a Special Referee, in accordance with CPLR 3 104 and as detailed below; it is further O R D E E D that within 20 days of assignment of a Special Referec, or at the schedule of the Spccial Referee, plaintiff shall make the requested discovery available for in camem review and all parties shall supply the Special Referee with the previously submitted papers on this motion. It is further ORDERED that, within 30 days of entry of this order, defendantslthird-party plaintiffs shall serve a copy of this order upon the Spccial Referee Clerk (Room 119M), for the placement of this matter on the Referee s calendar; Defendantshhird-party plaintiff s failure to comply will be deemed a waiver of their request for plaintiffs Facebook content. The assigned Spccial Referee shall review the supplied documentary discovery, in camera, and make a determination as to whether such information is subject to disclosure and identify specific information that is discoverable, in accordance with Patterson v. Turner Construction Co., 88 AD3d 617 (1 Dept 201 l)(the First Department remanded the case to the trial court for a more specific identification of [the] plaintiffs Facebook information that is relevant, in that it To the extent possible, such documentary discovery shall be LLBate~-~tamped (or the equivalent), so that each document will be easily identified by number, for easy reference. 3 [* 5] contradicts or conflicts with [the] plaintiffs alleged restrictions, disabilities, and losses, and other claims , in a matter in which the trial court had done an in cumeru review). See also Ahrums v. P e d e , 83 AD3d 527 (1 Dept 201 l)(the discovery sought will rcsult in the disclosure of relevant evidence or is reasonably calculatcd to lead to the discovery of information bearing on the claims ). Family Information Rased upon plainitfy s claims and his deposition testimony and the discovcry standard previously statcd, del endantshhird-party plaintiffs request for the names and addresses of plaintiffs parents and sister is granted. As such, it is ORDERED that within 20 days of servicc of a copy of this order, with notice of cntry, plaintiff shall supply to the parties, the addresses of plaintiffs parents and sister. Medical Records Defcndandthird-party plaintiffs request for authorizations to obtain plaintiff s medical records for five ( 5 ) years prior to and including the date of the accident is dcnied, as inovants failed to particularize the relevance of such information in their moving papers. With respect to such demand, movants merely stule that [tlhis demand is permissible under the case law and is defined with reasonable particularity ...[and] is both relevant and material to the defense of the action . 1[21, Affirmation in Support of Motion. However, 110 facts or details are supplied to support such request, and, significantly, no case law is supplied. Moreover, in opposition, plaintiff maintains that hc has already provided authorizations for medical records for treatment related to this lawsuit, as well as conditions which may be relevant to plaintifrs claini for loss of enjoyment of life . It is noted that without a factual showing, defendantdthird-party plaintiffs are not entitled to thc requested relief. See Hawkes v. Mount Sinai Hospital, 75 AD2d 509 (lst Dept 1980). Social Security Information Dcfendantslthird-party plaintiffs request for authorizations to obtain plaintifl s social security earnings information is denied. While movants argue that such information is relevant and 4 [* 6] . '. necessary to the defensc of this action and, in particular, plaintiffs claim of loss of enjoyment of life and inability to work, plaintiff has previoudy supplied his W-2s, as well as authorizations to obtain his employment and union records; thus, the requested information is duplicative. Moreover, defendnntslthird-party plaintiffs have supplied nu factual basis or supporting case law to support the granting of additioncd information as to plaintiff's past earnings, specifically, plaintifrs social security earnings inforniation. Conclusion Bascd upon the above, it is ORDERED that defendantdthird-party plaintiffs' motion to compel is granted, to the extent set forth herein; and it is further ORDERED that within 30 days of entry of this order, movants shall serve a copy upon all parties with notice of entry; and a copy upon Room 119M, for placement on referee calendar. Check One: [ ] [ ] FINAL DISPOSITION DO NOT POST Doris Ling-Cohan, JSC [ X J NON-FINAL DISPOSITION [ J:\ln Camcra\Bianco in camera faccbook.wpd 5 X ] REFEmNCE

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