Chai v. Barile

2019 NY Slip Op 34428(U)

ISRAEL CHAI, Plaintiff, v. GEORGE BARILE and JAMES ANTONIOU NICHOLAS, Defendants.

Motion Seq. No. 2

Index No. 63752/2017

Supreme Court, Westchester County

July 25, 2019

Unpublished Opinion

Motion Date: July 8, 2019

DECISION AND ORDER

HON JOAN B. LEFKOWITZ, J.S.C.

The following papers were read on this motion by plaintiff for an order to compel disclosure, and for such other and further relief as to this court may deem just and proper.

Order to Show Cause - Attorney Affirmation in Support - Exhibits A-D Affirmation in Opposition - Exhibit A

Upon the foregoing papers and the proceedings on July 8, 2019 this motion is determined as follows:

Plaintiff commenced the present action to recover damages for personal injuries arising from an automobile accident which occurred on May 13, 2016. According to the verified complaint, the accident occurred at the intersection of Coney Island Avenue and Park Circle, a public "traffic circle" located in Kings County, New York.

Plaintiff commenced this action by filing a summons and verified complaint on September 8, 2017. Defendants, represented by counsel, interposed an answer on October 6, 2017. A preliminary conference was held on or about June 19, 2018. This matter has been the subject of eight compliance conferences before the assigned Court Attorney-Referee from October 3, 2018 through April 29, 2019.

As pertinent to the instant application, Nicholas testified that he was the defendant driver at the time of the accident; he was unfamiliar with the area in which the accident occurred he could not recall the route or street names of the route upon which he was traveling leading up to the accident; and he was using a satellite-based global positioning system ("GPS") software application on his cellular phone commonly known as WAZE to assist in his travels. Nicholas further testified that on the date of the accident, he posted photographs of his various destination stops to his Facebook social media.^[1]

Plaintiff served a post-deposition demand dated April 15, 2019 upon defense counsel requesting the following disclosures:

"(1) Any photograph of any involved vehicle taken after the accident.

(2) All bills, costs, invoices, receipt, payment, estimates file for any vehicle involved in the accident.

(3) Complete and unredacted property damage file for any vehicle involved in the accident.

(4) Defendant could not recall his route on the date of the accident. Defendant testified that a record of his route is contained [in] his WAZE navigation account. Provide username and password for said account and an authorization to obtain data from said provider.

(5) Defendant could not recall neither the starting point nor the destination of any of the various places visited on the date of the accident. Defendant testified that a record of locations visited is contained [on] his social media accounts. Provide username and password for facebook, Instagram, Snapchat of the account and an authorization to obtain date from said provider(s)."

Of note, it is undisputed that defense counsel responded to all of the plaintiffs disclosure demands, with the exception of Nicholas's social media account and WAZE GPS account.^[2]

Plaintiff filed the instant application, pursuant to the briefing schedule, to compel responses . to his post-deposition demands or, in the alternative, to preclude the defendant from introducing any evidence at trial. In that regard, plaintiffs counsel argues that Nicholas's social media account and WAZE GPS account contain a record of each location that Nicholas visited en route to the accident site. Counsel contends that Nicholas's social media account and WAZE GPS account information related to "where the defendant was going to, from, or the route utilized" is both "material and necessary to the prosecution of this case."^[3]

Defense counsel opposed the plaintiffs motion. Counsel contends that the defendant has disclosed all information requested, with the exception of Nicholas's username and password as well as authorizations to obtain data from his social media and WAZE GPS accounts. In that regard, defense counsel contends that counsel properly objected to such demands as "irrelevant" and "intrusive".

Analysis:

CPLR 3101(a) requires "full disclosure of all matters material and necessary in the prosecution or defense of an action, regardless of the burden of proof." The phrase "material and necessary" is "to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason" (Allen v Crowell-Collier Publishing Co., 21 N.Y.2d403, 406 [\96S]; Foster v Herbert Slepoy Corp., 7 4 A.D.3d 1139 [2d Dept 2010]). The court has broad discretion to supervise discovery and to determine whether information sought is material and necessary in light of the issues in the matter (Mironer v City of New York, 79 A.D.3d 1106, 1108 [2d Dept 2010]; Auerbach v Klein, 30 A.D.3d 451, 452 [2d Dept 2006]).

As a general proposition, information contained on social networking sites may be discoverable where it is reasonably likely that the sites contain evidence which is material and relevant to the action (Romano v Steelcase Inc., 907 N.Y.S.2d 650 [Sup Ct, Suffolk County 2010]). The movant has the burden of demonstrating "the discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on her claim" (Richards v Hertz Corp., 100 A.D.3d 728, 730 [2d Dept 2012]). However, it is incumbent upon the party seeking disclosure to demonstrate a factual predicate with respect to the relevancy of the evidence (McCann v. Harleysville Ins. Company of New York, 2010 NY Slip Op 8181 [4^th Dept 2010]).

Here the plaintiff failed to make the requisite showing that the requested disclosure will result in disclosure of relevant evidence or is reasonably...