Opinion
325 CA 18–01103
03-22-2019
William CRAWFORD, Plaintiff–Appellant, v. R. JEWULA HOLDINGS LLC, and the Original Pancake House of Orchard Park, Inc., Defendants–Respondents.
THE HIGGINS KANE LAW GROUP, P.C., BUFFALO (TERRENCE P. HIGGINS OF COUNSEL), FOR PLAINTIFF–APPELLANT. KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (MELISSA FOTI OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
THE HIGGINS KANE LAW GROUP, P.C., BUFFALO (TERRENCE P. HIGGINS OF COUNSEL), FOR PLAINTIFF–APPELLANT.
KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (MELISSA FOTI OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
PRESENT: CENTRA, J.P., PERADOTTO, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff appeals, as limited by his brief, from that part of an order that denied his cross motion to compel discovery of certain documents related to a prior lawsuit against defendants. Contrary to plaintiff's contention, Supreme Court did not abuse its discretion by denying the cross motion (see Mosey v. County of Erie , 148 A.D.3d 1572, 1573, 50 N.Y.S.3d 641 [4th Dept. 2017] ; Voss v. Duchmann , 129 A.D.3d 1697, 1698, 12 N.Y.S.3d 428 [4th Dept. 2015] ). "Discovery of evidence of prior similar accidents, while material in cases where a defect is alleged in the design or creation of a product or structure, is irrelevant and inappropriate in cases such as this, where no inherent defect is alleged" ( Daniels v. Fairfield Presidential Mgt. Corp. , 43 A.D.3d 386, 388, 840 N.Y.S.2d 431 [2d Dept. 2007] ). Further, plaintiff concedes that his sole purpose for seeking the requested materials is to establish defendants' prior negligence, if any. The sought discovery therefore will not "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 [1968] ) because "evidence of unrelated bad acts" constitutes "the type of propensity evidence that lacks probative value concerning any material factual issue, and has the potential to induce the jury to decide the case based on evidence of defendant[s'] character" ( Mazella v. Beals , 27 N.Y.3d 694, 710, 37 N.Y.S.3d 46, 57 N.E.3d 1083 [2016] ; see Trotman v. New York City Tr. Auth. , 168 A.D.3d 1116, 1117–1118, 93 N.Y.S.3d 89 [2d Dept. 2019] ).