Herbenson v Carrols Corp.

Herbenson v Carrols Corp. 2012 NY Slip Op 08396 Decided on December 6, 2012 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: December 6, 2012
514770

[*1]PATRICIA HERBENSON, Appellant,

v

CARROLS CORPORATION, Respondent.

Calendar Date: October 11, 2012
Before: Mercure, J.P., Lahtinen, Malone Jr., Stein and Egan Jr., JJ.


Rutberg & Associates, PC, Poughkeepsie (Richard
Greenblatt of counsel), for appellant.
Smith, Sovik, Kendrick & Sugnet, PC, Syracuse
(Michelle M. Davoli of counsel), for respondent.

MEMORANDUM AND ORDER


Lahtinen, J.

Appeal from an order of the Supreme Court (Reilly Jr., J.), entered December 1, 2011 in Schenectady County, which granted defendant's motion for a protective order.

Plaintiff commenced this action contending that she sustained personal injuries as a result of eating food tainted with degreaser. She allegedly purchased the food at a Burger King restaurant operated by defendant. A disclosure dispute developed when defendant asserted, among other things, that it was required to keep confidential, under the terms of its franchise agreement with Burger King, information demanded in 3 of the 15 paragraphs of plaintiff's notice to produce. Plaintiff refused defendant's request to execute a confidentiality agreement regarding the information implicated by the three paragraphs and, thus, defendant moved for a protective order. While the motion was pending, plaintiff served a second notice to produce seeking a list of every complaint of a foreign substance in food ever made at each Burger King owned or operated by defendant. Indicating that this implicated well over 300 restaurants in a dozen states for a period exceeding 30 years, defendant requested that Supreme Court limit this demand as part of its pending motion for a protective order. Supreme Court granted defendant's motion. It directed that the information in the three paragraphs of the original notice be produced upon execution by plaintiff of a confidentiality agreement regarding such information and further limited the scope of the demand in the second notice to a three-year period at the restaurant where the incident occurred. Plaintiff appeals. [*2]

We affirm. It is a "well-settled principle that the trial court has broad discretion in supervising disclosure and in granting protective orders limiting or denying discovery" (Matter of Andrews v Trustco Bank, Natl. Assn., 289 AD2d 910, 912-913 [2001] [internal quotation marks and citations omitted]; accord Fox v Fox, 309 AD2d 1056, 1057 [2003]). Although we can substitute our discretion for that of the trial court regarding disclosure (see Brady v Ottaway Newspapers, 63 NY2d 1031, 1032 [1984]), we typically limit our review to whether the trial court clearly abused its discretion (see e.g. Ruthman, Mercadante & Hadjis v Nardiello, 288 AD2d 593, 594 [2001]; Saratoga Harness Racing v Roemer, 274 AD2d 887, 888 [2000]). Here, plaintiff is not being deprived of the documents and information sought in the disputed paragraphs of the original notice to produce. She is simply being required to keep that information confidential and has not indicated how doing so will adversely affect her lawsuit. Defendant made an adequate showing of a need for confidentiality to protect its obligations under the franchise agreement regarding such information and we are unpersuaded that Supreme Court abused its discretion. With regard to the second notice to produce, the demand was overbroad and the remedy tailored by Supreme Court was reasonable and within its discretion (see Pucik v Cornell Univ., 4 AD3d 686, 687 [2004]; Sullivan v Smith, 198 AD2d 749, 750 [1993]).

Mercure, J.P., Malone Jr., Stein and Egan Jr., JJ., concur.

ORDERED that the order is affirmed, with costs.