Opinion
8210N Index 158793/13
01-24-2019
Genaro VASQUEZ–SANTOS, Plaintiff–Respondent, v. Leena MATHEW, Defendant–Appellant. [And A Third Party Action]
McDonald & Safranek, New York (Kenneth E. Pinczower of counsel), for appellant. William Schwitzer & Associates, P.C., New York (Howard R. Cohen of counsel), for respondent.
McDonald & Safranek, New York (Kenneth E. Pinczower of counsel), for appellant.
William Schwitzer & Associates, P.C., New York (Howard R. Cohen of counsel), for respondent.
Sweeny, J.P., Tom, Kahn, Oing, Singh, JJ.
Private social media information can be discoverable to the extent it "contradicts or conflicts with [a] plaintiff's alleged restrictions, disabilities, and losses, and other claims" ( Patterson v. Turner Const. Co. , 88 A.D.3d 617, 618, 931 N.Y.S.2d 311 [1st Dept. 2011] ). Here, plaintiff, who at one time was a semi-professional basketball player, claims that he has become disabled as the result of the automobile accident at issue, such that he can no longer play basketball. Although plaintiff testified that pictures depicting him playing basketball, which were posted on social media after the accident, were in games played before the accident, defendant is entitled to discovery to rebut such claims and defend against plaintiff's claims of injury. That plaintiff did not take the pictures himself is of no import. He was "tagged," thus allowing him access to them, and others were sent to his phone. Plaintiff's response to prior court orders, which consisted of a HIPAA authorization refused by Facebook, some obviously immaterial postings, and a vague affidavit claiming to no longer have the photographs, did not comply with his discovery obligations. The access to plaintiff's accounts and devices, however, is appropriately limited in time, i.e., only those items posted or sent after the accident, and in subject matter, i.e., those items discussing or showing plaintiff engaging in basketball or other similar physical activities (see Forman v. Henkin , 30 N.Y.3d 656, 665, 70 N.Y.S.3d 157, 93 N.E.3d 882 [2018] ; see also Abdur–Rahman v. Pollari , 107 A.D.3d 452, 454, 967 N.Y.S.2d 31 [1st Dept. 2013] ).