Opinion
INDEX NO.: 28382-2007 CALENDAR NO.: 200901583MV INDEX NO.: 6169-2008 CALENDAR NO.: 200901474MV
07-02-2012
JAMILYN WALTER and JOHN WALTER, Plaintiffs. v. ROBERT WALCH and DIANA WALCH, Defendants. Action # 1 (Index # 28382-2007) JOHN P. WALTER, as Parent and Natural Guardian of PAIGE GILDARD, an Infant Under the age of 18 years. Plaintiff, v. ROBERT WALCH and DIANA F. WALCH, Defendants. Action # 2 (Index # 6169-2008)
PLAINTIFFS' ATTORNEY ACTION # 1: LINDENI3AUM & SILBER, PLLC PLAINTIFFS' ATTORNEY ACTION # 2: SHULMAN KESSLER LLP DEFENDANTS' ATTORNEYS: BAXTER SMITH & SHAPIRO. P.C.
PRESENT:
HON. , JR., J.S.C.
MOTION DATE: 6/25/2012
MOTION SEQ. NO.:003 MD
MOTION DATE: 6/6/2012
MOTION SEQ. NO.: 004 MD
PLAINTIFFS' ATTORNEY ACTION
# 1: LINDENI3AUM & SILBER, PLLC
PLAINTIFFS' ATTORNEY ACTION
# 2: SHULMAN KESSLER LLP
DEFENDANTS' ATTORNEYS:
BAXTER SMITH & SHAPIRO. P.C.
Upon the following papers numbered 1 to 27 read on these motions see king an order compelling discover, and an order of severance; Notice of Motion/ Order to Show Cause and supporting papers 1-13 : Notice of Cross Motion and supporting papers 14-19; Answering Affidavits and supporting papers 20-25 & 26-27; Replying Affidavits and supporting papers ____; Other ____; (and after hearing counsel in support and opposed to die motion) it is,
ORDERED that this motion by defendants Robert Walch and Diana F. Walch (Walch) brought on by Order to Show Cause dated May 15, 2012 seeking an order directing the plaintiff in Action # 2 (Index # 6169-2008) Paige Gildard (Gildard) to provide an authorization permitting defendants access to Gildard's Eacebook account and staying the trial of the action pending plaintiffs compliance is granted: and it is further
ORDERED that within 20 days from the date of service of a copy of this order, as directed below, plaintiff Gildard shall deliver to counsel for the defendants a properly executed consent and authorization as may be required by the operators of Facebook, permitting the defendants to gain access to the plaintiffs Facebook records, including any records previously deleted or archived by said operators; and it is further
ORDERED that defendant counsel is directed to serve a copy of this order with notice of entry upon counsel for all parties and non-party facebook within twenty davs of the entry date of this order by the Suffolk County Clerk; and it is further
ORDERED that the related motion by plaintiffs in Action # 1 (Index #28382-2007) Jamilyn Walter and John Walter (Walter) brought on by Order to Show Cause dated June 21, 2012 seeking an order severing Action # 1 (Index # 28382-2007) from Action #2(Index #6169-2008) and. upon such severance, permitting the trial of Action #1 to commence with jury selection on July 9.2012 is granted; and it is further
ORDERED that these actions are hereby severed and Action #2 (Index #6169-2008) is stayed pending the completion of the discovery related to the production of plaintiff Gildard's Facebook account records; and it is further
ORDERED that jury selection for Action # 1 (Index # 28382-2007) shall proceed on July 9, 2012. The parties are directed to appear at CCP on July 9. 2012 at 9:30 a.m. for the calendar call of the SS/SR calendar.
Both actions involve personal injuries sustained in a motor vehicle accident which occurred on October 31, 2005. Plaintiff Jamilyn Walter was operating a motor vehicle which was struck bv a vehicle operated by defendant Robert Walch. The plaintiffs daughter. Paige Gildard. was a passenger in the Walters' vehicle. By short form Order (Rebolini, J.) dated December 19. 2008 the defendants Walters' motion seeking an order consolidating both actions was granted to the extent that the actions were joined. By short form Order (Rebolini. J.) dated September 20. 2010 the plaintiffs (Wallers') motion in Action #1(Index # 28382-2009) seeking an order granting partial summary judgment against the defendants with respect to the issue of liability was granted.
A note of issue was filed in Action #1 on July 31. 2009; a note of issue was filed in Action #2 on July 27, 2009. Court records indicate that both actions have appeared numerous times on the Calendar Control Pan calendar and both actions are presently scheduled for jury selection on July 9, 2012 having been previously adjourned on four separate dates since March 2, 2012.
Defendants Walchs motion seeks an order compelling the plaintiff Gildard in Action #2(Index #6169-2008) to provide authorizations to permit the defendants to obtain Gildard's private portion of the plaintiff's social networking Facebook account information. Defendants claim that they are entitled to the records since they are material and relevant and will likely provide admissible evidence to contradict the plaintiff's loss of enjoyment of life claims. Defendants contend that Gildard alleges that she is in constant pain and that her overall quality of life and sense of well-being has been severely impacted as a result of the injuries sustained in the accident. It is the defendants" position that records sought are discoverable based upon the plaintiff's loss of enjoyment of life claims.
In Opposition to the defendants Walchs' motion, plaintiff Gildard submits an attorney's affirmation and claims that the defendants- motion must be denied since the public profile section of Ciildard's Facebook account does not provide any information which contradicts her loss of enjoyment of life claims. The plaintiff asserts that her public profile page has a single photograph of Gildard smiling and no other information. It is the plaintiffs contention that absent some factual predicate on the website's public page which raises an issue contradicting Ciildard's loss of enjoyment of life claims, no basis exists to permit the defendants to obtain access to Ciildard's private Facebook account.
Plaintiffs Walters' motion seeks an order severing the actions claiming that they will be severely prejudiced by any further delay in the damages' trial scheduled for July 9. 2012. Plaintiffs contend that discover}' issues must still be resolved in Action » 2 and that the issues concerning the damages sustained by Jamilyn Walters differ from the injuries sustained by the plaintiff Gildard in the companion action. Plaintiffs also claim that they have compensated a doctor to testify during the damages trial and that they will be prejudiced if the trial is again adjourned.
In opposition die defendants submit an attorney's affirmation and claim that no basis exists to sever the actions since common factual and legal issues exist which warrant a single trial. Defendants also claim that the plaintiffs have tailed to demonstrate substantial prejudice if the damages trial is adjourned for a minimal period of time to complete discover).
CPLR Section 3101(a)(4) provides:
Scope of disclosure.The Court of Appeals in Mien v. Crowell-Collier Publishing Company., 21 NY2d 403. 288 NYS2d 449 (1968) held:
(a) Generally. There shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof, by:
(4) any other person, upon notice slating the circumstances or reasons such disclosure is sought or required.
"The words "material and necessary" are. in our view to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason (CPLR Section 310l(a))..and should be construed... to permit discovery of testimony "which is sufficiently related to issues in litigation to make the effort to obtain it in preparation for trial reasonable" (ID at 406 citing 3 Weinstein-Korn-Miller. New York Civil Practice, para. 3101.7)).
Moreover plaintiffs who place their physical and mental condition in controversy may not shield themselves from disclosure material which is necessary to the defense of the action (Hoenig v. Westphal, 52 N'Y2d 605. 439 NYS2d 831 (1981)). Discover, is generally permitted with respect to materials that may be relevant to the issue of damages and the extent of a plaintiff's personal injuries including a plaintiff's claim for loss of enjoyment of life (Orlando v. Richmond Precast Inc., 53 AD3d 534. 861 NYS2d 765 (2ndDept., 2008)).
The defendants have made a sufficient showing that the material sought from the private profile section of Ciildard's I'acebook account is both material and necessary to the defense of the action and/or could lead to admissible evidence related to plaintiff's loss of enjoyment of life claims. Accordingly the defendants motion for an order compelling the plaintiff Gildard to provide authorizations for the facebook account records must be granted.
CPLR Section 603 provides:
Severance and separate trials.The decision to order severance is discretionary and should not be exercised unless the failure to sever will place some substantial right in jeopardy (Meczkowski v. E.W. Howell Co., Inc., 63 AD3d 803. 880 NYS2d 507 (2ndDept., 2008); Pellegrino v. Walker Theatre Inc., 127 AD2d 574. 511 NYS2d 372 (2ndDept., 1987): Karama Supermarket Inc. v. Frowley Plaza Associates, 200 Ad2d 355. 606 NYS2d 177 (1stDept., 2008)
In furtherance of convenience or to avoid prejudice the court may order a severance of claims, or may order a separate trial of any claims, or of any separate issue. The court may order the trial of any claim or issue prior to the trial of the others.
The record shows thai the plaintiffs' action has been repeatedly adjourned preventing the prompt prosecution of the Walters" damages only trial. Moreover given the fact that the damages sustained by Jamilyn Walter in (he accident must be the subject of proof which is not related to the damages sustained by Gildard. a severance to prevent further delay on Action # I is warranted particularly since discovery issues remain to be resolved in the companion action. Plaintiffs" motion seeking an order of severance pursuant to CPI.R Section 603 must therefore be granted.
PAUL J. BAISLEY, JR.
J.S.C.