Opinion
11058N Index 157983/15
02-18-2020
Dennis CASERTA, Plaintiff–Respondent, v. TRIBOROUGH BRIDGE AND TUNNEL AUTHORITY, Defendants–Appellant.
The Law Office of Kenneth Arthur Rigby, PLLC, New York (Kenneth Arthur Rigby of counsel), for appellant. Kazmierczuk & McGrath, Forest Hills (Joseph Kazmierczuk of counsel), for respondent.
The Law Office of Kenneth Arthur Rigby, PLLC, New York (Kenneth Arthur Rigby of counsel), for appellant.
Kazmierczuk & McGrath, Forest Hills (Joseph Kazmierczuk of counsel), for respondent.
Acosta, P.J., Kapnick, Moulton, Gonza´lez, JJ.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered February 26, 2019, which granted defendant's motion for a so-ordered subpoena compelling access to plaintiff's social media accounts only to the extent of directing plaintiff to provide "those items which show or discuss plaintiff attending and/or performing in concerts or playing musical instruments since March 6, 2015," unanimously modified, on the law and the facts, the motion granted without subject matter limitation, and the matter remanded for execution of such subpoenas, and otherwise affirmed, without costs.
The discovery sought by defendants, including photographs, videos, and other social media postings regarding plaintiff's social and recreational activities that might contradict his claims of disability, is relevant, useful, and reasonable (see Forman v. Henkin, 30 N.Y.3d 656, 665, 70 N.Y.S.3d 157, 93 N.E.3d 882 [2018] ; Vasquez–Santos v. Mathew, 168 A.D.3d 587, 92 N.Y.S.3d 243 [1st Dept. 2019] ). Plaintiff has not specified any items that may be irrelevant or private (see Forman at 666–667, 70 N.Y.S.3d 157, 93 N.E.3d 882 ), has not sought in limine review and has actually agreed to execute an authorization releasing such information. Accordingly, the order directing disclosure only of posts regarding musical events and performances, was unduly restrictive.
We decline to consider plaintiff's argument that defendant's motion was defective pursuant to 22 NYCRR 202.7(c), since plaintiff failed to raise it below (see Wilson v. Galicia Contr. & Restoration Corp., 10 N.Y.3d 827, 829, 860 N.Y.S.2d 417, 890 N.E.2d 179 [2008] ; U.S. Bank N.A. v. DLJ Mtge. Capital, Inc., 146 A.D.3d 603, 44 N.Y.S.3d 747 [1st Dept. 2017] ). In any event, the motion sufficiently satisfied the requirements of 22 NYCRR 202.7(c) (see Loeb v. Assara N.Y. I L.P., 118 A.D.3d 457, 987 N.Y.S.2d 365 [1st Dept. 2014] ).
We have considered plaintiff's remaining arguments and find them to be unavailing.