Opinion
2013-05833, 2013-09195
2015-05-20
Patricia HILLER, respondent, v. Joseph V. AMELLA, appellant, et al., defendant.
Skelos, J.P., Balkin, Roman and Hinds-Radix, JJ., concur.
Kevin J. Keating, Garden City, N.Y., for appellant. Russo, Karl, Widmaier & Cordano, PLLC, Hauppauge, N.Y. (Richard T. Cordano, Daniel Laurence Polsby, pro hac vice, and Edward Francis Ruberry, pro hac vice, of counsel), for respondent.
PETER B. SKELOS, J.P., RUTH C. BALKIN, SHERI S. ROMAN, and SYLVIA O. HINDS–RADIX, JJ.
In an action, inter alia, to recover damages for extortion, the defendant Joseph V. Amella appeals (1) from an order of the Supreme Court, Suffolk County (Rebolini, J.), dated April 9, 2013, which denied that branch of his motion which was to compel the plaintiff to produce a settlement agreement and other records relating to prior charges the plaintiff filed with the United States Equal Employment Opportunity Commission, and (2) from so much of an order of the same court dated July 30, 2013, as denied his motion for leave to reargue that branch of his prior motion which was to compel the plaintiff to produce a settlement agreement and other records relating to prior charges the plaintiff filed with the United States Equal Employment Opportunity Commission.
ORDERED that the appeal from the order dated July 30, 2013, is dismissed, as no appeal lies from an order denying reargument; and it is further,
ORDERED that the order dated April 9, 2013, is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff.
The Supreme Court providently exercised its discretion in denying that branch of the motion of the defendant Joseph V. Amella which was to compel the plaintiff to produce a settlement agreement and other records relating to prior charges she filed with the United States Equal Employment Opportunity Commission (hereinafter the EEOC) against her employer, as the settlement agreement and the related documents are not material and necessary to his defense of this action ( seeCPLR 3101[a]; Allen v. Crowell–Collier Publ. Co., 21 N.Y.2d 403, 406–407, 288 N.Y.S.2d 449, 235 N.E.2d 430; Altonen v. Kmart of N.Y. Holdings, Inc., 94 A.D.3d 920, 942 N.Y.S.2d 363; Allstate Ins. Co. v. Belt Parkway Imaging, P.C., 70 A.D.3d 530, 893 N.Y.S.2d 871; Mahoney v. Turner Constr. Co., 61 A.D.3d 101, 104, 872 N.Y.S.2d 433). Although Amella contends that disclosure of the settlement agreement, and the financial terms thereof, is warranted in light of the monetary offset provisions of General Obligations Law § 15–108(a), that statute does not apply here since the plaintiff's federal claims alleging discrimination, filed with the EEOC, were not based in tort ( see Bauman v. Garfinkle, 235 A.D.2d 245, 652 N.Y.S.2d 32; 515 Rest., LLC v. Suffolk Plate Glass Co., Inc., 2011 N.Y. Slip Op. 32873 [U], 2011 WL 5295002 [Sup.Ct., Suffolk County 2011]; Bankers Trust Co. v. Lee Keeling & Assocs., 20 F.3d 1092, 1099 [10th Cir.]; see also Rivera v. Heyman, 157 F.3d 101, 105 [2d Cir.]; Baguer v. Spanish Broad. Sys., 2007 WL 2780390, 2007 U.S. Dist. Lexis 70793 [S.D.N.Y., No. 04–CV–893 (KMK) ] ).