Opinion
11197N Index 155513/16
03-03-2020
Agim DANI, Plaintiff-Respondent, v. 551 WEST 21ST STREET OWNER LLC, et al., Defendants-Appellants.
Pillinger Miller Tarallo, LLP, Elmsford (Patrice M. Coleman of counsel), for appellants. Wingate, Russotti, Shapiro & Halperin, LLP, New York (David M. Schwarz of counsel), for respondent.
Pillinger Miller Tarallo, LLP, Elmsford (Patrice M. Coleman of counsel), for appellants.
Wingate, Russotti, Shapiro & Halperin, LLP, New York (David M. Schwarz of counsel), for respondent.
Acosta, P.J., Friedman, Mazzarelli, Webber, JJ.
Order, Supreme Court, New York County (Lucy Billings, J.), entered August 28, 2018, which denied defendants' motion to compel production of plaintiff's cell phone records, unanimously affirmed, without costs.
The court providently exercised its discretion in denying defendants' motion (see generally Veras Inv. Partners, LLC v Akin Gump Strauss Hauer & Feld LLP, 52 A.D.3d 370, 373, 860 N.Y.S.2d 78 [1st Dept. 2008] ). Defendants at this point have failed to satisfy the "threshold requirement" that the request was reasonably calculated to yield information that is "material and necessary" ( Forman v. Henkin, 30 N.Y.3d 656, 661, 70 N.Y.S.3d 157, 93 N.E.3d 882 [2018] [internal quotation marks omitted] ). The affidavits submitted in support of the motion simply stated that plaintiff was holding his cell phone in his hand prior to the trip and fall accident, and that the cell phone was found near his body after the accident. As such, they were too speculative to warrant disclosure of plaintiff's cell phone records (see Gough v. Panorama Windows, Ltd., 133 A.D.3d 526, 19 N.Y.S.3d 169 [1st Dept. 2015] ).
We have considered defendants' remaining contentions and find them unavailing.