Opinion
608838-2017
01-28-2020
Mark E. SPOLJARIC, Jr., Plaintiff, v. Lorri N. SAVARESE and Khosrow Rezvani, Defendants.
TIERNEY & TIERNEY, ESQ., Attorneys for Plaintiff, 409 Route 112, Pt. Jefferson Station, NY 11776 RUSSO & TAMBASCO, Attorneys for Defendant Lorri N. Savarese, 115 Broad Hollow Road, Suite 300, Melville, NY 11747 LAW OFFICE OF ANDREA G. SAWYERS, Attorneys for Defendant Khosrow Rezvani, 3 Huntington Quadrangel, Suite 102S, Melville, NY 11747
TIERNEY & TIERNEY, ESQ., Attorneys for Plaintiff, 409 Route 112, Pt. Jefferson Station, NY 11776
RUSSO & TAMBASCO, Attorneys for Defendant Lorri N. Savarese, 115 Broad Hollow Road, Suite 300, Melville, NY 11747
LAW OFFICE OF ANDREA G. SAWYERS, Attorneys for Defendant Khosrow Rezvani, 3 Huntington Quadrangel, Suite 102S, Melville, NY 11747
Robert F. Quinlan, J.
Upon the following papers read on a motion by defendant Savarese for an order pursuant to CPLR 3216 dismissing plaintiff's complaint, or alternatively seeking an order of preclusion for plaintiff's failure to provide certain authorizations: Notice of Motion and supporting papers: NYSCEF Docs #14-24 ; Affirmation in Opposition and supporting papers: NYSCEF Docs #28-30 ; and Affirmation in Reply: NYSCEF Docs #28-30; as well as the oral arguments of counsel before the court on January 28, 2020 it is,
ORDERED that defendant Lorri N. Savarese's motion seeking an order pursuant to CPLR 3126 dismissing plaintiff's complaint or alternatively precluding plaintiff from offering evidence in regards to his injuries at trial is denied, for the reasons set forth more completely in the court's decision placed on the records after oral argument; and it is further
ORDERED that defendant Lorri N. Savarese's request for authorization for all data pertaining to plaintiff's Fitbit device from Fitbit Inc., is denied, subject to renewal; and it is further
ORDERED that defendant Lorri N. Savarese's request for authorizations for photographs posted by plaintiff on the "Bumble" and "Okcupid" dating sites since the date of the accident is denied; and it is further
ORDERED that defendant Lorri N. Savarese's request for authorizations for photographs posted by plaintiff to Facebook, Instagram and Twitter since the accident is granted to the extent that plaintiff's counsel is to review those internet social media platforms with plaintiff and within 45 days of the date of the decision placed on the record after oral argument provide both defendant Lorri N. Savarese's counsel, and defendant Khosrow Rezvani's counsel, with copies of any and all photographs that depict plaintiff in social, recreational or physical activities after the date of the accident, as well as an affirmation from plaintiff's counsel that based upon his review, such photographs are the only ones posted that depict such activities or that his review has revealed no such photographs other than the eight (8) already exchanged; and it is further
ORDERED that failure of the plaintiff to comply with the terms of this order may form the basis for a further motion by defendant Lorri N. Savarese to preclude plaintiff from offering evidence in regards to his injuries at trial; and it is further
ORDERED that this action is scheduled for a further status conference on March 30, 2020 at 9:30 AM before this part.
This is an action for personal injury allegedly sustained by plaintiff Mark E. Spoljaric, Jr. ("plaintiff") as a result of a motor vehicle accident on July 9, 2016 which plaintiff claims was caused by the negligence of defendants Lorri N. Savarese ("defendant Savarese") and Khosrow Rezvani ("defendant Rezvani"). Among the claims of injury made by plaintiff in his verified bill of particulars is a claim that his injuries have resulted in "impairment of ability to enjoy leisure time activities and has impaired the quality of his life." Discovery had proceeded in this action, and after a deposition of plaintiff on May 24, 2018, counsel for defendant Savarese served a discovery demand upon plaintiff which included, among other requests, authorizations for all data pertaining to plaintiff's Fitbit device from Fitbit, Inc., authorizations for all photographs posted by plaintiff to Facebook, Instagram, Twitter, Bumble and Okcupid social media platforms since the accident. Plaintiff's counsel responded to the demands by providing eight (8) photographs of plaintiff's post-accident trip to Europe, but refused to provide any other photographs or authorizations for Fitbit records or the social media postings "without a Court Order." Defendant Saverese's counsel then brought this motion seeking dismissal of plaintiff's complaint, or alternatively for an order precluding plaintiff to present testimony concerning his injuries, for failure to comply with his discovery demands, to which plaintiff filed opposition. Defendant Rezvani did not serve any similar demands, nor did he respond in any way to Defendant Saverese's motion. By order dated January 8, 2020 this court set the motion for oral argument on January 28, 2020.
At oral argument counsel for defendant Rezvani failed to appear, and after hearing the arguments of plaintiff's counsel and counsel for defendant Savarese, the court placed its decision on the record.
As more fully set forth on the record, the court denied defendant Savarese's request to dismiss the complaint or to preclude plaintiff from presenting evidence at trial concerning his injuries, and in its discretion, the court addressed defendant Savarese's request for authorizations for plaintiff's Fitbit records and photographs from his social media postings.
The court denied the request for authorization to obtain plaintiff's Fitbit records, as on the record before it, defendant Savarese failed to meet the threshold standard that such disclosure was reasonably calculated to yield information material and necessary to her defense (see Evan v. Roman , 172 AD3d 501 [1st Dept 2019] ). Here defendant Savarese's argument for such disclosure was that because plaintiff lost fifty (50) pounds since the accident, she was entitled to these records to see how he did this despite his claim of injury. Defendant Savarese's request was based upon speculation, the only evidence before the court was plaintiff's deposition testimony that he very rarely even checked his Fitbit and used it mostly as a watch to tell time. As diet, not just exercise, is a more important component of weight loss, this argument had little "weight." On this record, it appeared to the court that this request was merely an overly broad "fishing expedition," not based upon any supportable evidence (see Mendives v. Curcio , 174 AD3d 796 [2d Dept 2019] ). The court noted that plaintiff had provided authorizations to obtain his records from his gym for two years prior to the accident through "the present," and stated that if those records some how established the essential nature of his Fitbit use, defendant Savarese could renew her application.
The court denied the request for authorizations for all photographs posted on Bumble and Okcupid, both of which the parties agreed were "dating sites." As pointed out by the Court of Appeals in Forman v. Henkin , 30 NY3d 656 (2018), in balancing the potential utility of information against the privacy rights of plaintiff, the court should tailor its order to avoid release of embarrassing material of limited relevancy, especially those of a romantic nature, as would be any photographs posted on these sites (see Forman , supra at 665).
But the court directed plaintiff to provide both defendants with copies of photographs depicting plaintiff in social, recreational or physical activities after the date of the accident from plaintiff's Facebook, Instagram and Twitter social media platforms, after plaintiff's counsel has reviewed those platforms with plaintiff (see Vasquez-Santos v. Mathews , 168 AD3d 587 [1st Dept 2019] ; Doyle v. Temco Service Industries , 172 AD3d 554 [1st Dept 2019] ). In addition, plaintiff's counsel is to provide an affirmation confirming his review of those social media platforms with plaintiff, and that any photographs provided to defendants are the only ones posted that depict such activities. If, after such review, plaintiff's counsel finds that there are no photographs encompassed by this order other than the eight (8) photographs already exchanged, then he is to provide both counsel with an affirmation to that effect. This discovery is to be provided to defendants' counsels within forty-five (45) days of the decision placed on the record on January 28, 2020.
Although defendant Rezvani's counsel did not respond to the motion, participate in the oral argument, nor make a discovery request for the photographs directed to be exchanged above, in order to avoid future delay, the court directed that defendant Rezvani's counsel also be provided with the photographs and affirmation.