Reid v. Soults

138 A.D.3d 1091

30 N.Y.S.3d 669

2016 N.Y. Slip Op. 03155

Thomas P. REID, etc., respondent,

v.Clifford B. SOULTS, etc., et al., appellants, et al., defendants.

2014-07256, Index No. 14132/09.

Supreme Court, Appellate Division, Second Department, New York.

April 27, 2016.

Westermann, Sheehy, Keenan, Samaan & Aydelott, LLP, White Plains, NY (Timothy M. Smith and Jennifer J. Bennice of counsel), for appellants.

Pirrotti & Glatt Law Firm PLLC, Scarsdale, NY (Anthony Pirrotti, Jr., of counsel), for respondent.

L. PRISCILLA HALL, J.P., JEFFREY A. COHEN, HECTOR D. LaSALLE, and FRANCESCA E. CONNOLLY, JJ.

In an action to recover damages for medical malpractice, lack of informed consent, and wrongful death, the defendants Clifford B. Soults and Adirondack Neurosurgical Specialists, P.C., appeal from an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered March 18, 2014, which, upon remittitur from this Court by decision and order dated February 26, 2014 (see Reid v. Soults, 114 A.D.3d 921, 980 N.Y.S.2d 579 ), denied those branches of their motion which were to compel the plaintiff to comply with their demand for discovery and inspection with respect to a certain videotape compilation and their demand for an authorization for a nonparty's YouTube account.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, with costs, and those branches of the appellants' motion which were to compel the plaintiff to comply with their demand for discovery and inspection with respect to a certain videotape compilation and their demand for an authorization for a nonparty's YouTube account are granted.

CPLR 3101(a) is to be liberally construed “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” (Allen v. Crowell–Collier Publ. Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430 ; see Matter of Kapon v. Koch, 23 N.Y.3d 32, 38, 988 N.Y.S.2d 559, 11 N.E.3d 709 ). The appellants were required to show that the disclosure sought was “material and necessary” (CPLR 3101[a] ; see Matter of Kapon v. Koch, 23 N.Y.3d at 38, 988 N.Y.S.2d 559, 11 N.E.3d 709 ). In addition, since the appellants were seeking disclosure from a nonparty, they were required to provide notice of the “circumstances or reasons” why the disclosure was “sought or required” from the nonparty witness (CPLR 3101[a] [4] ; see Matter of Kapon v. Koch, 23 N.Y.3d at 39, 988 N.Y.S.2d 559, 11 N.E.3d 709 ; Bianchi v. Galster Mgt. Corp., 131 A.D.3d 558, 559, 15 N.Y.S.3d 189 ; Nacos v. Nacos, 124 A.D.3d 462, 463, 1 N.Y.S.3d 90 ; Ferolito v. Arizona Beverages USA, LLC, 119 A.D.3d 642, 643, 990 N.Y.S.2d 218 ; Dicenso v. Wallin, 109 A.D.3d 508, 509, 970 N.Y.S.2d 457 ).

The Supreme Court improvidently exercised its discretion in finding that the subject videotape compilation and its sources were irrelevant to the claims in this case. The videotape contains footage that is relevant to the plaintiff's pecuniary loss claim and the life expectancy of the decedent (see Doe v. Sutlinger Realty Corp., ...