Opinion
# 2014-028-504 Claim No. 121331 Motion No. M-83787
02-04-2014
TRAVIS W. HINCHEY v. THE STATE OF NEW YORK
Claimant's attorney: DAVID J. PAJAK, ESQ. Defendant's attorney: KAUFMAN DOLOWICH & VOLUCK, LLP BY: Michael V. DeSantis, Esq.
Synopsis
Motion to amend the answer is denied as GOL § 9-103 does not have to be pled as an affirmative defense; motion to compel discovery of Claimant's social media accounts is granted to the extent that in camera inspection of the information is ordered.
Case information
UID: 2014-028-504 Claimant(s): TRAVIS W. HINCHEY Claimant short HINCHEY name: Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote The caption of this action is amended sua sponte to reflect (defendant name) : the State of New York as the only properly named defendant. Third-party claimant(s): Third-party defendant(s): Claim number(s): 121331 Motion number(s): M-83787 Cross-motion number(s): Judge: RICHARD E. SISE Claimant's DAVID J. PAJAK, ESQ. attorney: Defendant's KAUFMAN DOLOWICH & VOLUCK, LLP attorney: BY: Michael V. DeSantis, Esq. Third-party defendant's attorney: Signature date: February 4, 2014 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following papers were read on Defendant's motion for on order granting permission for Defendant to file an Amended Answer and compelling Claimant to respond to a specific discovery demand:
1. Notice of Motion and Supporting Affirmation of Michael V. DeSantis, Esq., with annexed Exhibits;
2. Affirmation in Opposition of David J. Pajak, Esq, with annexed Exhibits; and
3. Reply Affirmation of Michael V. DeSantis, Esq.
Filed papers: Claim -Answer
This claim arose on December 18, 2010 on a snowmobile trail in Martinsburg, New York, that is alleged to be owned and operated by the New York Department of Parks, Recreation and Historic Development. At approximately 3:00 p.m. on that date, Claimant alleges that his snowmobile struck a low-lying boulder or large rock which was concealed by snow within the operating path of the trail. Claimant asserts that Defendant was negligent in failing to maintain the trail and keep it in a reasonably safe condition.
Defendant raised 12 affirmative defenses in its answer and subsequently sought Claimant's stipulation to amend the answer to add an additional defense based on General Obligations Law (GOL) § 9-103. Claimant denied that request, and Defendant has now moved for the Court's permission to make such an amendment. In addition, Defendant has moved to compel Claimant to comply with its request for authorizations granting Defendant full access to Claimant's social media website pages.
Another discovery dispute arose concerning certain other demands contained in Defendant's Demand for a Verified Bill of Particulars but it appears that those disputes were resolved by letter responses provided by Claimant (DeSantis affirmation, Exhibits I and J)
Application for Leave to Amend Answer
With respect to Defendant's motion for permission to amend its answer, both parties discusss, in great detail, whether GOL § 9-103 applies to the circumstances of this case (see DeSantis affirmation, ¶¶ 35-45; Exhibit K [Pajak letter dated April 15, 2013]; Pajak affirmation, ¶¶ 4-15, Exhibit D [Pajak letter dated May 8, 2013]; DeSantis reply affirmation, ¶¶ 4-18).
Briefly stated, GOL § 9-103 limits the duty owed by the owners and lessees of certain land to individuals who are engaged in recreational activities on their land. One of the activities enumerated in the statute is operation of snowmobiles. As a general proposition, this statute's protection is available if the defendant landowner can establish that "(1) the plaintiff is engaged in one of the activities identified in Section 9-103 and (2) the plaintiff is recreating on land suitable for that activity" (Bragg v Genesee County Agric. Socy., 84 NY2d 544, 551-552 [1994]). The statute itself contains some exceptions, however, and courts have recognized others, with the result that a number of other factors that must be considered before a final determination can be made as to whether the statute is applicable in any given situation. These factors include the recreational activity in question, the suitability of the property for such activity, whether or not the property is posted, whether permission or an invitation is given by the landowner or lessee, if there is any maintenance and supervision of the property for such purposes, whether a fee or other compensation is charged for use of the land and if so to whom or by whom such consideration is paid, and whether the risk of danger was created by some affirmative action on the part of the landowner. In other words, the facts of each situation must be considered in some detail to determine whether GOL § 9-103 is relevant to a particular action.
Although this issue arises here in the context of a motion to amend an answer, both parties apparently expect this Court to make a final ruling on the statute's applicability, relying on facts that are asserted by counsel and in some cases supported by documents annexed as exhibits. There is only passing reference to the threshold question: whether the statute is required to be pled as an affirmative defense. As it turns out, there is no such requirement. In Ferres v City of New Rochelle (68 NY2d 446, 450 [1986]), the Court of Appeals held, without qualification, that GOL § 9-103 is not an affirmative defense that must be pled: "If the statute is applicable, its sole effect is to establish the substantive law defining the extent of the duty owed to plaintiff" (accord Chiarini ex rel. Chiarini v County of Ulster, 9 AD3d 769, 770 [3d Dept 2004]; Telfer v Gunnison Lakeshore Orchards, 245 AD2d 620, 621, n1 [3d Dept 1997]; Blair v Newstead Snowseekers, Inc., 6 Misc 3d 843, 845, [Sup Ct, Erie County 2005] [S]ection 9-103 defines the scope of a landowner's duty rather than a defense to that duty"]).
Determining the applicability of GOL § 9-103 is "a fact-driven analysis," relying on "evidentiary proof providing a factual framework for analyzing [its] applicability" (Chiarini ex rel. Chiarini v County of Ulster, 9 AD3d at 770, supra). Consequently, a final determination may appropriately be made in response to a motion for summary judgment, which is brought after discovery has been completed and all relevant evidence can be presented, or, as has happened in the past, in the context of a motion to dismiss an affirmative defense, where such a defense has been pled without objection (see, e.g., Myers v State of New York, 11 AD3d 1020 [4th Dept 2004]; Arquette v State of New York, 190 Misc 2d 676 [Ct Cl 2001]; Chapman v State of New York , UID No. 2001-005-506 [Ct Cl, Corbett, J., March 19, 2001].) A motion to strike an affirmative defense, like a motion for summary judgment, "searches the record and puts in issue the legal sufficiency of the complaint itself" (Rand v Hearst Corp., 31 AD2d 406, 408 [1st Dept 1969], affd 26 NY2d 806 [1970]; Delaine v Finger Lakes Fire & Cas. Co., 23 AD3d 1143, 1144 [4th Dept 2005]; Mojica v New York City Tr. Auth., 117 AD2d 722 [2d Dept 1986]). A motion for permission to amend a pleading does not.
Defendant's motion to amend its answer to assert an affirmative defense based on GOL § 9-103 is denied, because such an amendment is unnecessary.
Discovery of Claimant's Social Media Information
Defendant's Combined Demands (DeSantis affirmation, Exhibit D) contains a "Demand for Social Media Information" which seeks authorizations "to permit the Defendant to obtain full access to and copies of Claimant's current and historical records and/or information and photographs on Claimant's social media website pages, including but not limited to Facebook, MySpace, Twitter, Friendster, Flickr, and any other social media websites." Claimant declined to comply with this demand, terming it a "fishing expedition" (id., Exhibit J [letter]), and Defendant now seeks an order from the Court compelling the production of such authorizations.
Both parties acknowledge that social media information may be discovered if there is a factual predicate establishing that the information requested is relevant to the action for which the discovery is sought (see e.g., Kregg v Maldonado, 98 AD3d 1289, 1290 [4th Dept 2012]; 44A NY Jur 2d Disclosure § 194). In support of the instant motion, Defendant asserts that a sufficient factual predicate for this discovery is shown in this case because a review of Claimant's public Facebook page "reveals videos, photographs, and other information posted by Plaintiff [sic] related to his participation in motorized action sports" (id., ¶ 28). This information, Defendant contends, will demonstrate Claimant's use and knowledge of motorized sport vehicles, both before and after the accident. Reference is made to a video of Claimant driving into a body of water as an example of his disregard for the risks of such sports activity.
Defendant also contends that information contained on the social media sites "will demonstrate the limited nature of Plaintiff's [sic] damages as a result of the alleged accident" (id., ¶ 29). The Court notes, however, that at a January 2012 conference, it was agreed that, unless Defendant raised objections, the action was to be bifurcated. Since no objection has been raised, the claim is bifurcated and the nature and extent of Claimant's damages is not relevant at this time.
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There must be some concrete reason to believe that relevant information will be found on the social media sites, not simply a hope or expectation that relevant information might possibly be found.
"[P]laintiff's mere possession and utilization of a Facebook account is an insufficient basis to compel plaintiff to provide access to the account or to have the court conduct an in camera inspection of the account's usage. To warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff's Facebook account--that is, information that 'contradicts or conflicts with plaintiff's alleged restrictions, disabilities, and losses, and other claims' "(Tapp v New York State Urban Dev Corp., 102 AD3d 620 [1st Dept 2013] [citation omitted]).
In Kregg v Maldonado (supra), for example, a personal injury claim, the court denied the defendant's request for such information, stating that there was nothing to suggest that "the information in the social media accounts [would contradict] plaintiff's claims for the diminution of the injured party's enjoyment of life." In McCann v Harleysville Ins. Co. of NY (78 AD3d 1524, 1525 [4th Dept 2010]), access to the plaintiff's Facebook account was also sought because, defendant asserted, it would contain information relevant to whether plaintiff had suffered a serious injury. In that instance, the court found that the demand was "overly broad." On a second appeal in which the defendant attempted to specify the type of evidence sought, the court ruled that "defendant essentially sought permission to conduct 'a fishing expedition' into plaintiff's Facebook account based on the mere hope of finding relevant evidence." As has been stated elsewhere "digital 'fishing expeditions' are no less objectionable than their analog antecedents" (Caraballo v City of New York, 2011 WL 972547 [Sup Ct, Richmond County 2011]).
Discovery has been permitted, however, in cases where, in the court's view, a sufficient factual predicate has been established. In Romano v Steelcase Inc. (30 Misc 3d 426, 427 [Sup Ct, Suffolk County 2010]), the Plaintiff alleged permanent injuries interfering with her ability to participate in certain activities, while the public portion of her MySpace and Facebook pages revealed an active lifestyle and travel at a time when she alleged she was homebound. Because of that connection between an issue critical to the action and the type of information the injured party put on her social media account, the court directed the plaintiff to execute authorizations allowing access to her Facebook and MySpace records, including any records previously deleted or archived. Similarly, in Jennings v TD Bank (2013 WL 5957882 [Sup Ct, Nassau County 2013]) the public portion of the plaintiff's Facebook account revealed one photograph that would be deemed relevant evidence and therefore, according to the court, "there is little risk of a 'fishing expedition' since relevant evidence has been found which makes the request more than the mere hope of finding relevant evidence and gives a good faith basis for the request."
Requiring a party to allow wholesale disclosure of all social media information is disfavored by many courts. According to the Fourth Department, the proper course of action to be followed by a party seeking to discover its opponent's social media records is to draft a "narrowly-tailored discovery request seeking only that social-media-based information that relates to the claimed injuries arising from the accident" (Kregg v Maldonado, 98 AD3d at 1290). Other courts have not allowed such unrestricted access, even if there is a sufficient factual predicate is established. In Richards v Hertz Corp. (100 AD3d 728, 730 [2d Dept 2012]), the Second Department held that the defendants had demonstrated that the plaintiff's Facebook account contained a protograph that was "probative of the issue of the extent of her alleged injuries" but held that because other items in the account archives were likely to be personal information irrelevant to the action, an in camera inspection by the trial court would be needed (See also, Patterson v Turner Constr. Co., 88 AD3d 617, 618 [1st Dept 2011] ["[I]t is possible that not all Facebook communications are related to the events that gave rise to plaintiff's cause of action"]; Fawcett v Altieri, 38 Misc 3d 1022, 1024 [Sup Ct, Richmond County 2013]; Winchell v Lopiccolo, 38 Misc 3d 458, 462 [Sup Ct, Orange County 2012) ["request for unrestricted access to plaintiff's Facebook page is overbroad"]).
As the cited cases illustrate, requests for access to social media records are most often made to obtain information about a plaintiff or claimant's physical condition or cognitive skills, issues that are relevant to a damages determination. It has long been accepted that photographs, videotapes and other evidence of a injured party's abilities post accident can be relevant and material to the determinations about the severity or permanence of limitations caused by the injury. In the instant action, however, trial of this action has been bifurcated and discovery relating to the issue of damages is delayed until after a determination on liability (see footnote 2). As noted above, Defendant seeks information that would be relevant to the affirmative defense alleging that Claimant's injuries were caused or contributed to by his own culpable conduct. Evidence of the general behavior of a party or that the party was negligent on another occasion is generally not regarded as admissible for the purpose of showing that he or she acted in a certain way on another specific occasion (79 NY Jur 2d Negligence § 225; see also Halloran v Virginia Chems., 41 NY2d 386, 391 [1977] ["When negligence is at issue, however, New York courts have long resisted allowing evidence of specific acts of carelessness or carefulness to create an inference that such conduct was repeated when like circumstances were again presented."]). Thus the information sought by Defendant in this instance is not something that would be admissible as direct evidence of Claimant's culpable conduct. The scope of discovery is broad, however, and the Court of Appeals has stated that the test of what is discoverable under CPLR 3101 should be one of "usefulness and reason" and should permit discovery of information that is sufficiently related to the issues in litigation to make obtaining them a reasonable step (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406-07 [1968], citing 3 Weinstein-Korn-Miller, NYCiv Prac, ¶ 3101.07, p 31-13). Information regarding Claimant's recreational use of motorized vehicles is therefore sufficiently related to the issues in this case and, in fact, could be directly admissible for impeachment purposes if, for example, Claimant attempts to prove that he is a particularly cautious driver.
Defendant's motion is granted to the extent that Claimant is directed to produce, for in camera inspection, the current and historical records, including information and photographs, on Claimant's social media website pages, such as Facebook, MySpace, Twitter, Friendster, Flickr, and any others. In the event that these records are voluminous, Claimant may be directed to conduct his own initial review of the records and indicate those items that he contends are not discoverable (see Nieves v 30 Ellwood Realty LLC, 39 Misc 3d 63 [1st Dept 2013]).
For the reasons set forth above, Defendant's motion to amend its answer is denied as moot, and Defendant's motion for an order compelling production of Claimant's social media records is granted to the extent indicated.
February 4, 2014
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims