Get a Document - by Citation - 2010 NY Slip Op 8181 https://www.lexis.com/research/retrieve?_m=372d4a35064f2ad426b656...

Custom ID : - No Description - | Switch Client | Preferences | Help | Sign Out

Search Get a Document Shepard's® More History Alerts

FOCUS™ Terms Search Within Go Advanced...

View Tutorial
Service: Get by LEXSEE®
Citation: 2010 NY Slip Op 8181

2010 NY Slip Op 8181, *; 2010 N.Y. App. Div. LEXIS 8396, **

[*1] KARA R. MCCANN, PLAINTIFF-RESPONDENT, v HARLEYSVILLE INSURANCE COMPANY OF NEW

YORK, DEFENDANT-APPELLANT. (APPEAL NO. 1.)

1179 CA 10-00612

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT

2010 NY Slip Op 8181; 2010 N.Y. App. Div. LEXIS 8396

November 12, 2010, Decided

November 12, 2010, Entered

NOTICE:

THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE PENDING RELEASE OF THE
FINAL PUBLISHED VERSION. THIS OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE
PUBLICATION IN THE OFFICIAL REPORTS.

SUBSEQUENT HISTORY: Subsequent appeal at, Decision reached on appeal by, Motion denied by
McCann v. Harleysville Ins. Co. of N.Y., 2010 N.Y. App. Div. LEXIS 8183 (N.Y. App. Div. 4th Dep't,
Nov. 12, 2010)

CORE TERMS: compel disclosure, properly denied, protective order, authorization, photographs

COUNSEL: [**1] CHELUS, HERDZIK, SPEYER & MONTE, P.C., BUFFALO (CHRISTOPHER R. POOLE
OF COUNSEL), FOR DEFENDANT-APPELLANT.

ANSPACH MEEKS ELLENBERGER LLP, BUFFALO (DAVID M. STILLWELL OF COUNSEL), FOR PLAINTIFF-
RESPONDENT.

JUDGES: PRESENT: MARTOCHE , J.P., LINDLEY, SCONIERS , PINE , AND GORSKI , JJ.

OPINION

Appeal from an order of the Supreme Court, Erie County (James H. Dillon, J.), entered August 19,
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 the
vehicle she was operating collided with a vehicle driven by defendant's insured. Plaintiff thereafter

1 of 2 12/1/2010 10:01 AM
Get a Document - by Citation - 2010 NY Slip Op 8181 https://www.lexis.com/research/retrieve?_m=372d4a35064f2ad426b656...

settled that action and commenced the instant action against defendant seeking "supplementary
uninsured/underinsured motorist coverage." In appeal No. 1, defendant appeals from an order
denying its motion to compel disclosure of photographs and seeking "an authorization for plaintiff's
Facebook account." According to defendant, the information sought was relevant with respect to the
issue whether plaintiff sustained a serious injury in the accident. [**2] We conclude in appeal No. 1
that Supreme Court properly denied defendant's motion "as overly broad," without prejudice "to
service of new, proper discovery demands" (see generally Slate v State of New York, 267 AD2d 839,
841, 699 N.Y.S.2d 824).

In appeal No. 2, defendant appeals from an order denying its subsequent motion seeking to compel
plaintiff to produce photographs and an authorization for plaintiff's Facebook account information and
granting plaintiff's cross motion for a protective order. Although defendant specified the type of
evidence 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, 541 N.Y.S.2d 30). Indeed,
defendant essentially sought permission to conduct "a fishing expedition" into plaintiff's Facebook
account based on the mere hope of finding relevant evidence (Auerbach v Klein, 30 AD3d 451, 452,
816 N.Y.S.2d 376). Nevertheless, although we conclude that the court properly denied defendant's
motion in appeal No. 2, we agree with defendant that the court erred in granting plaintiff's cross
motion for a protective order. Under the circumstances presented here, the court abused its discretion
in prohibiting [**3] defendant from seeking disclosure of plaintiff's Facebook [*2] account at a
future date. We therefore modify the order in appeal No. 2 accordingly.

Entered: November 12, 2010

Service: Get by LEXSEE®

Citation: 2010 NY Slip Op 8181
View: Full
Date/Time: Wednesday, December 1, 2010 - 10:00 AM EST

* Signal Legend:
- Warning: Negative treatment is indicated
- Questioned: Validity questioned by citing refs
- Caution: Possible negative treatment
- Positive treatment is indicated
- Citing Refs. With Analysis Available
- Citation information available
* Click on any Shepard's signal to Shepardize® that case.

ln About LexisNexis | Privacy Policy | Terms & Conditions | Contact Us

Copyright © 2010 LexisNexis, a division of Reed Elsevier Inc. All rights reserved.

2 of 2 12/1/2010 10:01 AM