I Index Number : 107409/2011 1 DEL GALLO, KARLA INDEX Sequence Number : 002 -~ r to Show Cause -Affidavits - JUN 2 3 2016 COUNTY CLERKS OFFICE NEW YORK 1. CHECK ONE: ..................................................................... 0 CASE DISPOSED 2. CHECK AS APPROPRIATE: ........................... MOTION IS: 0 GRANTED 3. CHECK IF APPROPRIATE: ................................................ 0 SETTLE @ NON-FINAL DISPOSITION 0 DENIED 0 GRANTED IN PART 0 OTHER SUBMIT ORDER 0 FIDUCIARY APPOINTMENT 0 REFERENCE
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DISCUSSION · the infant daughter of plaintiffs Karla Del Gallo and Michael Ricciutti, and for personal injuries sustained by plaintiff Karla Del Gallo (Del Gallo or plaintiff), resulting
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I Index Number : 107409/2011 1 DEL GALLO, KARLA INDEX
Sequence Number : 002
-~
r to Show Cause -Affidavits -
JUN 2 3 2016
COUNTY CLERKS OFFICE NEW YORK
1. CHECK ONE: ..................................................................... 0 CASE DISPOSED
2. CHECK AS APPROPRIATE: ........................... MOTION IS: 0 GRANTED
3. CHECK IF APPROPRIATE: ................................................ 0 SETTLE
@ NON-FINAL DISPOSITION
0 DENIED 0 GRANTED IN PART 0 OTHER
SUBMIT ORDER
0 FIDUCIARY APPOINTMENT 0 REFERENCE
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY - - PART 5
KARLA DEL GALLO, MICHAEL J. RICCIUTTI, as Administrator for the Estate of GIANNI MARIE RICCIUTTI, Deceased, and MICHAEL J. RICCIUTTI, Individually, Index No.: 107409/11
Plaintiffs,
-against- . DECISION/ORDER
CITY OF NEW YORK, CENTRAL, PARK CONSERVANCY, INC., THE WILDLIFE CONSERVATION SOCIETY and BEUCLER TREE EXPERTS, LLC,
Defendants.
FREED, KATHRYN, J.:
JUN a 82M4
RECITATION, AS REQUIRED BY CPLR2219 (a), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION.
PAPERS NUMBERED
NOTICE OF MOTION AND AFFIDAVITS ANNEXED ................... CENTRAL PARK’S ANSWEIUNG AFFIDAVIT ................................ OTHER ANSWERING AFFIDAVITS .................................................. REPLYING AFFIDAVITS .................................................................... EXHIBITS .............................................................................................. ....................... OTHER ................................................................................................... .......................
1 2 W . A - F ) 3,4@~s.A-L) . [email protected]) ....... 6,7 ......... ........ 8.9 .........
NOTICE OF CROSS-MOTION AND AFFIDAVITS ANNEXED......
UPON THE FOREGOING CITED PAPERS, THIS DECISION/ORDBR ON THE MOTION IS AS FOLLOWS:
In this action, plaintiffs sue to recover damages for the death of Gianni Marie Ricciutti,
the infant daughter of plaintiffs Karla Del Gallo and Michael Ricciutti, and for personal injuries
sustained by plaintiff Karla Del Gallo (Del Gallo or plaintiff), resulting fiom a falling tree limb in
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Central Park in June 20 10 (the accident). Plaintiffs move for a protective order with respect to
certain of defendants’ discovery demands. Defendants City of New York (City), Central Park
Conservancy (CPC), The Wildlife Conservation Society (WCS), and Beucler Tree Experts, LLC
(Beucler) oppose the motion; and WCS cross moves to compel plaintiffs to produce certain
documents and information.
DISCUSSION
As all parties in this case recognize, the scope of pre-trial discovery under CPLR 3 10 1 (a)
is broad. CPLR 3 10 1 (a) provides that “[tlhere shall be full disclosure of all evidence material
and necessary in the prosecution or defense of an action” and “embodies the policy determination
that liberal discovery encourages fair and effective resolution of disputes on the merits.”
Spectrum Sys. Intl. Corp. v Chem. Bank, 78 NY2d 371, 376 (1991). The words “material and
necessary” as used in the statute are “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 Publ. Co. , 2 1 NY2d 403,406 (1 968); see Cynthia B. v New Rochelle Hosp. Med.
Ctr., 60 NY2d 452,46 1 (1 983).
Notwithstanding the policy of favoring “open and far-reaching pretrial discovery”
(DiMichel v South Buffalo Ry. Co., 80 NY2d 184, 193 [ 19921, cert denied sub nom Poole v
Consolidated Rail Corp, , 5 10 US 8 16 [ 19931; Kavanagh v Ogden Allied Maintenance Corp. , 92
NY2d 952,954 [1998]), “[a] party is not entitled to unlimited, uncontrolled, unfettered
disclosure.” Geffner v Mercy Med Ctr., 83 AD3d 998, 998 (2d Dept 201 1) (citations omitted);
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see Foster v Herbert Slepoy Corp., 74 AD3d 1139, 1140 (2d Dept 2010); Gilman & Ciocia, Inc.
v Walsh, 45 AD3d 531 (2d Dept 2007); see also H R . Prince, Inc. v Elite Envtl. Sys., Inc., 107
AD3d 850, 850 (2d Dept 2013) (“discovery demands which are unduly burdensome, lack
specificity, or seek privileged and/or irrelevant information are improper and will be vacated”).
The trial courts have broad discretion to supervise discovery and to determine whether
information sought is material and necessary. See Martinez v Bauer, 103 AD3d 537, 537 (lst
Dept 2013); Mironer v City oflvew York, 79 AD3d 1106, 1108 (2d Dept 2010); Auerbach v
Klein, 30 AD3d 451,452 (2d Dept 2006). Litigants “are not without protection against
unnecessarily onerous application of the discovery statutes. Under our discovery statutes and
case law, competing interests must always be balanced; the need for discovery must be weighed
against any special burden to be borne by the opposing party.” Kavanagh, 92 NY2d at 954
(internal quotation marks and citations omitted); see Andon v 302-304 Mott St. Assocs., 94 NY2d
740, 747 (2000); Cynthia B. , 60 NY2d at 46 1.
CPLR 3 103 (a) authorizes a court, “at any time on its own initiative or on motion of any
party,” to issue a “protective order denying, limiting, conditioning or regulating the use of any
Dept 2004). As previously stated, the scope of discovery, while broad, does not give a party “the
right to ‘uncontrolled and unfettered disclosure”’ (Gomez v State ofNew York, 106 AD3d 870,
872 (2d Dept 201 3 [citation omitted]), and “the ‘fact that the information [Defendant] seeks is in
an electronic file as opposed to a file cabinet does not give [it] the right to rummage through the
entire file.”’ Giacchetto, 293 FRD at 1 14 (citation omitted). “[Dligital ‘fishing expeditions’ are
no less objectionable than their analog antecedents.” Caraballo v City of New York, 201 1 WL
972547,201 1 NY Misc LEXIS 1038, *6, 201 1 NY Slip Op 30605(U) (Sup Ct, Richmond
County 201 l), citing McCann v Harleysville Ins. Co, of N Y. , 78 AD3d 1524, 1525 (4th Dept
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20 10); see Tapp v New York State Urban Dev. Corp. , 102 AD3d 620,62 1 ( lSt Dept 20 13);
Auerbach, 30 AD3d at 452; Winchell, 38 Misc 3d at 461.
Courts have used “a two-prong analysis for determining whether social media accounts
are discoverable. First, the court determines whether the content in the accounts is material and
necessary, and then it balances whether the production of this content would result in a violation
of the account holder’s privacy rights.” Jennings v TD Bank, 2013 WL 5957882, 2013 NY Misc
LEXIS 32783(U), *3 (Sup Ct, Nassau County 2013), citing Fawcett v Altieri, 38 Misc 3d 1022
(Sup Ct, Richmond County 2013). To warrant such discovery, “defendants must establish a
factual predicate for their request by identifying relevant information in plaintiffs [social media]
account - that is, information that ‘contradicts or conflicts with plaintiffs alleged restrictions,
disabilities, and losses, and other claims.”’ Tapp, 102 AD3d at 620-621, quoting Patterson, 88
AD3d at 618; see Kregg v Maldonado, 98 AD3d 1289, 1290 (4th Dept 2012). “Absent some
facts that the person disclosed some information about the subject matter of the pending law suit,
granting carte blanche discovery of every litigant’s social media records is tantamount to a costly,
time consuming ‘fishing expedition.’” Fawcett, 38 Misc 3d at 1028; see Pecile v Titan Cap.
Group, LLC, 1 13 AD3d 526, 527 (1 st Dept 20 14) (vague and generalized assertions that
information might contradict plaintiffs claims provides no basis for discovery of social media
accounts); Tapp, 102 AD3d at 62 1 (argument that Facebook postings may reveal information
contradicting plaintiffs disability amounts to request for fishing expedition); cf Richards v Hertz
Corp., 100 AD3d 728 (2d Dept 2012) (discovery of private Facebook postings allowed where
material posted on public page contradicted deposition testimony); Romano v Steelcase Inc., 3 0
Misc 3d 426,43 1 (Sup Ct, Suffolk County 2010) (same).
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Defendants have demanded authorizations from Del Gallo for “the content of her entire
LinkedIn account.” Connors Aff., 7 19; see WCS’s Notice to Produce, dated August 30,2012,
Ex. F to Connors Aff., 7 1; CPC’s Combined Demand, dated August 27,2012, Ex. H to Gross
Aff., 7 1 1. WCS contends that plaintiffs deposition testimony provides the necessary factual
predicate for discovery of her LinkedIn account and her “responses to former colleagues’
inquiries regarding her post-accident condition and communications between Karla Del Gallo
and employment recruiters are material to her damages claims.” Connors Aff., 7 18. CPC argues
that, because plaintiff claims that she has been “totally disabled” and “partially disabled” from
working since the accident, it is entitled to discovery of plaintiffs LinkedIn account “to learn
about plaintiffs on-line description of her employment abilities, any employment offers she may
have received, her acceptance of any offers, and so forth . . . [which] may help determine the
amount of damages.” Gross Aff., 7 15.
At her deposition, Del Gallo testified that she had a LinkedIn account prior to the June
20 10 accident, and she left it up after the accident to keep in touch with former colleagues. Del
Gallo Dep., August 14, 2012, Ex. A to Connors Aff., at 364-365. She stated that she has
responded to former colleagues “who are asking how I’m doing. Not about work-related stuff.”
Id. at 365. She also stated that recruiters have contacted her about positions and she has
responded that she is “not looking for employment at this time.” Id.
Defendants do not argue that the content of plaintiffs LinkedIn account will contradict
her testimony that she told recruiters that she was not seeking employment, and, given her
acknowledgment that she did not look for work, the requested information likely may be
cumulative and unnecessary. See Winchell, 3 8 Misc 3d at 46 1. Nevertheless, plaintiff does not
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dispute that information related to her communications with recruiters may be relevant to her lost
earnings claim, and previously, in response to defendants’ demands for a list of all recruiters who
have contacted her fi-om LinkedIn, she stated that she would provide such records should they
become available. See Omnibus Response to Defendants’ Discovery Demands, Ex. A to Isaac
Aff., T[ 17. Defendants, therefore, may obtain information pertaining to plaintiffs
communications with recruiters and others, related to job offers and inquiries, searches, and
responses, if any, available on her LinkedIn account.
Defendants have not shown, however, that they are entitled to discovery of plaintiffs
communications with former colleagues inquiring about her condition, or to all other material on
plaintiffs LinkedIn account. WCS, in arguing that plaintiffs “self assessments” in response to
inquiries from former co-workers are relevant to her damages claim (Connors Reply Aff., 7 1 l),
neither asserts that the disclosure might contradict or conflict with her claims nor otherwise
provides a “proper basis for the disclosure.” Pecile, 113 AD3d at 527; see Tapp, 102 AD3d at
620-621. WCS’s further argument, that plaintiffs LinkedIn communications are relevant to her
claims that her injuries have prevented her from “enjoying the normal fruits of society” and have
contributed to “loss of enjoyment of life” (Connors Reply Aff., 7 8), is improperly raised for the
first time in reply. See Gumbs, 1 14 AD3d at 574; Keneally v 400 Fifth Realty LLC, 100 AD3d
624,624 (1 St Dept 201 3); Ritt v Lenox Hill Hosp., 182 AD2d 560, 562 (1 St Dept 1992). Even
considering the argument, however, defendants offer no more than “the mere hope of finding
relevant evidence,” which is insufficient to warrant such disclosure. McCann, 78 AD3d at 1525.
“To be sure, anything that a person says or does might in some theoretical sense be reflective of
her emotional state. But that is hardly justification for requiring the production of every thought
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she may have reduced to writing.” Rozell v Ross-Holst, 2006 WL 163 142, *3,2006 US Dist
LEXIS 2277, “10-1 1 (SD NY 2006).
While defendants have also demanded access to “all social media sites” used by Del
Gallo (see WCS’s Notice to Produce, dated April 2,2013, Ex. H to Connors Aff., 7 2), it appears
that defendants are not pursuing such demand. In any event, such demand should be denied as a
request for an improper fishing expedition. See Auerbach, 30 AD3d at 452. The City, claiming
that it is entitled to access plaintiffs “Luminosity” account, also offers nothing to support its
entitlement to access what is essentially an online brain game site.
Driving Records
Defendants have demanded authorizations for Del Gallo’s and her husband’s driving
records, including copies of driver’s licenses, driver’s license applications and license renewal
applications, from both the New Jersey Department of Motor Vehicles and the Maryland Motor
Vehicle Administration. Del Gallo testified at her deposition that she has had a driver’s license
since she was 16, currently holds a valid license, and, after she moved from New Jersey to
Maryland in December 201 0, she transferred her New Jersey license to a Maryland license. Del
Gallo Dep., Ex. I to Connors Aff. in Opp., at 25-26,26-27. She testified that when she
transferred her license, she did not remember whether she took a vision test, she did not have to
provide any vision records, and that “you just give them your New Jersey valid license and you
get a Maryland one.” Id. at 166-167. At her deposition held in August 2012, plaintiff testified
that she did not drive at that time, that one of her doctors, Dr. Llinas, told her not to drive, and
that she was “very anxious” to drive and hoped to get permission to “at least do some limited
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driving.” Id. at 178-179. Plaintiff further testified that another of her doctors, Dr. Goldstein,
deferred to Dr. Llinas on her neurological issues, but, with respect to her vision issues, would
allow her to do some limited driving, on local roads, during the day. Id. at 179- 180.
Based on this testimony, defendants contend that the demanded documents, and any
information about restrictions on Del Gallo’s Maryland and New Jersey licenses, are relevant to
her current physical and mental limitations, her loss of enjoyment of life, and the extent of her
ability to be self-sufficient. See Gross Aff., ‘I[ 14; Connors Aff., 7 26. WCS contends that,
because plaintiff testified that she does not remember whether she took a vision test when she
exchanged her New Jersey license for a Maryland license, and Maryland requires a vision test or
proof of adequate vision when exchanging a license, “any documentation” submitted by Del
Gallo to the Maryland Motor Vehicle Administration to show that she is physically and mentally
qualified to drive a car is relevant to her damages claims. Id., 77 23-25. The City also argues,
without citing to any legal authority, that all applicants “are required by law to list any
impairments as to their physical ability to drive” (Page Aff., 7 28), and if plaintiffs “application
reflects that she did not list any limitations, then such will go towards her credibility at the time
of trial, and will clearly assist with the defendant’s case.” Id.
Defendants, however, offer no evidence that any of the demanded documents exist, other
than plaintiffs driver’s license, and “[tlhis attempt to use document discovery as a means to test
whether or not certain unknown documents exist is an impermissible fishing expedition.” Penn
Place Operating, Inc. v Two Penn Plaza Assocs., 2 15 AD2d 23 1,23 1 (1 St Dept 1995); see
Argumedo v 303 Tenants Corp., 246 AD2d 6 16 (2d Dept 1998). Nor do defendants show that
they made any “attempt to probe this issue” at plaintiffs deposition. Penn Place Operating, Inc.,
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215 AD2d at 23 1; see Fascaldi v Fascaldi, 209 AD2d 578 (2d Dept 1994) (depositions should be
used to ascertain existence of documents before documents demanded).
Contrary to defendants’ contentions, there is no testimony or other evidence that an
application was required to exchange an out-of-state license for a Maryland license, or that
disclosure of any disability was required.’ Even assuming a vision test was required (see
Connors Aff., 7 24 n 4), information regarding plaintiffs vision is available, and more
appropriately sought, from other sources, including opthamology records already requested. See
WCS’s Demand for Authorizations, Ex. B to Connors Aff. Defendants thus do not show that the
information sought from driving records is likely to lead to relevant evidence or could not be
obtained by other means. See Sexter v Kimmelman, 277 AD2d 186, 187 (1” Dept 2000);
Crazytown Furniture, 150 AD2d at 42 1, With respect to driving records of plaintiffs husband,
Michael Ricciutti, and automobile insurance records from Liberty Mutual, defendants make no
argument that those records are material and necessary. Plaintiffs accordingly are not required to
produce the requested driving and automobile insurance records.
Additional Issues
Plaintiffs’ motion for a protective order with respect to the remaining discovery issues
identified in the motion, including “pictures taken at a sister-in-law’s pool, bank records
regarding payouts, printouts of e-mails from Del Gallo from 2002 to date, credit card payments, a
camera used by Mr. Ricciutti on the date of the accident, and the address of plaintiffs brother”
‘To the contrary, a review of the Maryland Motor Vehicle Administration website indicates that no application is required to transfer a license. See www.mva.maryland,gov/drivers/apply/new-to- maryland.htm.
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(Isaac Aff,, at 2), is denied without prejudice to raising those issues at a conference before the
special referee assigned to this case. Neither plaintiffs nor defendants have adequately addressed
those issues for the court to make a determination. Similarly, to the extent that defendants raise
other outstanding discovery issues in their opposition papers, defendants, other than WCS , have
not moved for any relief, and the discovery issues raised in their opposition papers also should be
brought before the special referee, after good faith efforts to resolve them have been made.2
Turning to WCS’s cross motion to compel plaintiff to provide discovery, WCS correctly
notes that plaintiff has offered no opposition to its demand for authorizations for the current
records of John Sherman, M.D., Scott Wolfe, M.D., and Dr. Llinas; and the current address of
Jesse Benitez and Deanna Benitez; and the portion of the motion seeking those items will be
granted. The branch of the cross motion seeking authorizations for all obstetrical and
gynecological records of Dr. Hoffman and Shady Grove Fertility concerning plaintiff is denied
for the reasons discussed above; and the branch of the cross motion seeking plaintiffs LinkedIn
records is denied except to the limited extent described above.
For all the above stated reasons, plaintiffs motion is granted in part and denied in part,
and WCS’s cross motion is granted in part and denied in part, and it is accordingly:
ORDERED that plaintiffs motion for a protective order is granted to the extent that
defendants’ demands for obstetrical and gynecological records pertaining to plaintiff of Dr.
Hoffman and Dr. McClamrock, and of Shady Grove Fertility and Radiology-Ultrasound, are
’The court has considered defendants’ other arguments in opposition to plaintiffs motion, including the City’s arguments that the motion should be denied based on procedural defects, and finds them unavailing.
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vacated; and defendants demands for driving records of plaintiff and of Michael Ricciutti, and for
insurance records from Liberty Mutual, are vacated; and it further,
ORDERED that WCS's cross motion is granted, without opposition, to the extent that
plaintiffs are directed to provide, within twenty (20) days of service of a copy of this order with
notice of entry, 1) recent HIPPA compliant authorizations for plaintiffs records from John
Sherman, M.D., Scott Wolfe, M.D., and Dr. Llinas; and 2) the last known address(es) of Deanna
Benitez and Jesse Benitez; and it is further,
ORDERED that, within twenty (20) days of service of a copy of this order with notice of
entry, plaintiff shall produce all postings or other records from her LinkedIn account, reflecting,
relating to, referring to, or otherwise concerning any communications with recruiters and any
other communications pertaining to employment offers, employment inquiries, and employment
searches, and any responses to such offers, inquiries, and searches, since the date of the accident,
including any records previously deleted or archived; and it is further,
ORDERED that any remaining discovery issues not addressed in this order are referred to