Bank v BLS Funding Corp.

[*1] Bank v BLS Funding Corp. 2005 NY Slip Op 52092(U) [10 Misc 3d 134(A)] Decided on December 12, 2005 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 12, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and BELEN, JJ.
2005-317 Q C

Todd C. Bank, Appellant,

against

BLS Funding Corp. and DAVID BROWN, Respondents.

Appeal from an order of the Civil Court of the City of New York, Queens County (Timothy J. Dufficy, J.), entered December 6, 2004. The order, insofar as appealed from, denied plaintiff's cross motion for a protective order with respect to an audiotape of a telephone conversation.

Order, insofar as appealed from, unanimously affirmed with $10 costs.

Plaintiff commenced this action to recover damages from defendants due to their alleged violation of the Telephone Consumer Protection Act (47 USC § 227 [b] [1] [C]) and the regulations promulgated thereunder. During the discovery phase, defendants requested production of audiotapes containing conversations which plaintiff recorded between himself and an employee of the defendants. Plaintiff refused to produce the audiotapes until after defendants were deposed. After defendants' efforts to resolve the dispute without court intervention failed, defendants sought and obtained an order requiring plaintiff to produce the audiotapes prior to defendants' depositions. The court denied plaintiff's cross motion seeking a protective order which would permit him to delay production of the audiotapes until defendants were deposed. Plaintiff appeals from the denial of said cross motion.

In Tai Tran v New Rochelle Hosp. Med. Ctr. (99 NY2d 383 [2003]), the Court of Appeals held that CPLR 3101 (i) "requires full disclosure with no limitation as to timing, unless and until the Legislature declares otherwise" (id. at 389-390). Although the Court of Appeals recognized the possibility that disclosure prior to depositions might lead to deposition testimony [*2]which is tailored to respond to material disclosed, it concluded that the Legislature was aware of the risk and that the Legislature decided that full disclosure prior to depositions was more important than the risk of tailored deposition testimony (id.; see also Sun Plaza Enters. Corp. v Crown Theatres, 307 AD2d 352 [2003]). Plaintiff's cross motion seeking a protective order is based upon a footnote in the Tai Tran case in which the Court of Appeals stated "that a party is still free to seek a protective order to restrict disclosure based on grounds that justify the [*3]
issuance of such an order (see CPLR 3103)" (Tai Tran, 99 NY2d at 388, n 2). In the instant case, as plaintiff failed to set forth any grounds to justify a protective order, the Civil Court properly denied his cross motion.
Decision Date: December 12, 2005