| McCann v Harleysville Ins. Co. of N.Y. |
| 2010 NY Slip Op 08181 [78 AD3d 1524] |
| November 12, 2010 |
| Appellate Division, Fourth Department |
| Kara R. McCann, Respondent, v Harleysville Insurance Company ofNew York, Appellant. (Appeal No. 1.) |
—[*1] Anspach Meeks Ellenberger LLP, Buffalo (David M. Stillwell of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (James H. Dillon, J.), entered August19, 2009 in a personal injury action. The order denied the motion of defendant to compel disclosure.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced an action seeking damages for injuries she sustained when thevehicle she was operating collided with a vehicle driven by defendant's insured. Plaintiff thereaftersettled that action and commenced the instant action against defendant seeking "supplementaryuninsured/underinsured motorist coverage." In appeal No. 1, defendant appeals from an order denyingits motion to compel disclosure of photographs and seeking "an authorization for plaintiff's Facebookaccount." According to defendant, the information sought was relevant with respect to the issue whetherplaintiff sustained a serious injury in the accident. We conclude in appeal No. 1 that Supreme Courtproperly denied defendant's motion "as overly broad," without prejudice "to service of new, properdiscovery demands" (see generally Slate v State of New York, 267 AD2d 839, 841 [1999]).
In appeal No. 2, defendant appeals from an order denying its subsequent motion seeking to compelplaintiff to produce photographs and an authorization for plaintiff's Facebook account information andgranting plaintiff's cross motion for a protective order. Although defendant specified the type ofevidence sought, it failed to establish a factual predicate with respect to the relevancy of the evidence(see Crazytown Furniture v Brooklyn Union Gas Co., 150 AD2d 420, 421 [1989]). Indeed,defendant essentially sought permission to conduct "a fishing expedition" into plaintiff's Facebookaccount based on the mere hope of finding relevant evidence (Auerbach v Klein, 30 AD3d 451, 452 [2006]). Nevertheless, althoughwe conclude that the court properly denied defendant's motion in appeal No. 2, we agree withdefendant that the court erred in granting plaintiff's cross motion for a protective order. Under thecircumstances presented here, the court abused its discretion in prohibiting defendant from seekingdisclosure of plaintiff's Facebook [*2]account at a future date. Wetherefore modify the order in appeal No. 2 accordingly. Present—Martoche, J.P., Lindley,Sconiers, Pine and Gorski, JJ.