| Herbenson v Carrols Corp. |
| 2012 NY Slip Op 08396 [101 AD3d 1220] |
| December 6, 2012 |
| Appellate Division, Third Department |
| Patricia Herbenson, Appellant, v Carrols Corporation,Respondent. |
—[*1] Smith, Sovik, Kendrick & Sugnet, PC, Syracuse (Michelle M. Davoli of counsel), forrespondent.
Lahtinen, J. Appeal from an order of the Supreme Court (Reilly Jr., J.), entered December 1,2011 in Schenectady County, which granted defendant's motion for a protective order.
Plaintiff commenced this action contending that she sustained personal injuries as a result ofeating food tainted with degreaser. She allegedly purchased the food at a Burger King restaurantoperated by defendant. A disclosure dispute developed when defendant asserted, among otherthings, that it was required to keep confidential, under the terms of its franchise agreement withBurger King, information demanded in three of the 15 paragraphs of plaintiff's notice to produce.Plaintiff refused defendant's request to execute a confidentiality agreement regarding theinformation implicated by the three paragraphs and, thus, defendant moved for a protective order.While the motion was pending, plaintiff served a second notice to produce seeking a list of everycomplaint of a foreign substance in food ever made at each Burger King owned or operated bydefendant. Indicating that this implicated well over 300 restaurants in a dozen states for a periodexceeding 30 years, defendant requested that Supreme Court limit this demand as part of itspending motion for a protective order. Supreme Court granted defendant's motion. It directed thatthe information in the three paragraphs of the original notice be produced upon execution byplaintiff of a confidentiality agreement regarding such information and further limited the scopeof the demand in the second notice to a three-year period at the restaurant where the incidentoccurred. Plaintiff appeals.[*2]
We affirm. It is a "well-settled principle that the trialcourt has broad discretion in supervising disclosure and in granting protective orders limiting ordenying discovery" (Matter of Andrews v Trustco Bank, Natl. Assn., 289 AD2d 910,912-913 [2001] [internal quotation marks and citation omitted]; accord Fox v Fox, 309AD2d 1056, 1057 [2003]). Although we can substitute our discretion for that of the trial courtregarding disclosure (see Brady v Ottaway Newspapers, 63 NY2d 1031, 1032 [1984]),we typically limit our review to whether the trial court clearly abused its discretion (see e.g.Ruthman, Mercadante & Hadjis v Nardiello, 288 AD2d 593, 594 [2001]; SaratogaHarness Racing v Roemer, 274 AD2d 887, 888 [2000]). Here, plaintiff is not being deprivedof the documents and information sought in the disputed paragraphs of the original notice toproduce. She is simply being required to keep that information confidential and has not indicatedhow doing so will adversely affect her lawsuit. Defendant made an adequate showing of a needfor confidentiality to protect its obligations under the franchise agreement regarding suchinformation and we are unpersuaded that Supreme Court abused its discretion. With regard to thesecond notice to produce, the demand was overbroad and the remedy tailored by Supreme Courtwas reasonable and within its discretion (see Pucik v Cornell Univ., 4 AD3d 686, 687 [2004]; Sullivan vSmith, 198 AD2d 749, 750 [1993]).
Mercure, J.P., Malone Jr., Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed,with costs.