| Wadolowski v Cohen |
| 2012 NY Slip Op 06801 [99 AD3d 793] |
| October 10, 2012 |
| Appellate Division, Second Department |
| Jan Wadolowski, Appellant, v Phillip Ean Cohen,Respondent. |
—[*1] Andrea & Towsky, Garden City, N.Y. (Frank A. Andrea III and Leslie Lopez of counsel), forrespondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Kings County (Vaughan, J.), dated October 26, 2011, which denied hismotion pursuant to CPLR 3120 (1) (ii) to direct the defendant to allow him entry into the interiorof the defendant's premises located in the Village of South Hampton for the purpose ofinspecting, measuring, surveying, and photographing the interior of the premises.
Ordered that the order is affirmed, with costs.
The plaintiff was performing demolition and construction work at the defendant's vacationhome in the Village of South Hampton (hereinafter the subject premises). As he was doing so, hewas standing outside on a flat exterior roof approximately 10 feet above the ground when he fell,allegedly sustaining injuries. Pursuant to a pre-litigation court order, the defendant was requiredto allow the plaintiff access to the outside of the subject premises to inspect, measure, andphotograph the site where the accident occurred. After the plaintiff commenced this action, hemoved pursuant to CPLR 3120 (1) (ii) to direct the defendant to allow him entry into the interiorof the subject premises for the purpose of inspecting, measuring, surveying, and photographingthe site where the accident occurred. The Supreme Court denied the plaintiff's motion. Weaffirm.
"Parties are entitled to disclosure of all matter 'material and necessary' to prosecution of theaction" (Matter of Skolinsky, 70AD3d 845, 845 [2010], quoting CPLR 3101 [a]; see Allen v Crowell-Collier Publ.Co., 21 NY2d 403, 406 [1968]; Trimarco v Data Treasury Corp., 59 AD3d 615, 615 [2009]). "Thephrase 'material and necessary' should be interpreted liberally, and the test is one of 'usefulnessand reason' " (Accent Collections, Inc. vCappelli Enters., Inc., 84 AD3d 1283, 1283 [2011], quoting Kooper v Kooper, 74 AD3d 6, 10[2010]). "It is incumbent on the party seeking disclosure to demonstrate that the method ofdiscovery sought will result in the disclosure of relevant evidence or is reasonably calculated tolead to the discovery of information bearing on the claims, and unsubstantiated bare allegationsof relevancy are insufficient to establish the factual predicate regarding relevancy"(Crazytown Furniture v Brooklyn Union Gas Co., 150 [*2]AD2d 420, 421 [1989] [citations omitted]; see Foster v Herbert Slepoy Corp., 74AD3d 1139, 1140 [2010]). "The supervision of discovery, and the setting of reasonableterms and conditions for disclosure, are matters within the sound discretion of the trial court" (Bernardis v Town of Islip, 95 AD3d1050, 1050 [2012]; see Kooper v Kooper, 74 AD3d at 17).
Under the circumstances of this case, where the accident occurred on the exterior of thesubject premises and there were no allegations that would render any aspect of the interiorrelevant to the plaintiff's case, the plaintiff failed to establish that access to the interior of thesubject premises would yield matter " 'material and necessary' to prosecution of the action"(Matter of Skolinsky, 70 AD3d at 845, quoting CPLR 3101 [a]; see Allen vCrowell-Collier Publ. Co., 21 NY2d at 406; Trimarco v Data Treasury Corp., 59AD3d at 615). Accordingly, notwithstanding that the defendant failed to demonstrate that hewould be unduly prejudiced or burdened if the plaintiff's motion were granted (see Montalvo v CVS Pharmacy, Inc.,81 AD3d 611, 612 [2011]; see also CPLR 3103 [a]), the Supreme Court providentlyexercised its discretion in denying the plaintiff's motion. Angiolillo, J.P., Dickerson, Belen andMiller, JJ., concur.