Opinion
Index No. 152108/2016
11-08-2018
DORIAN DAUGHTRY, Plaintiff(s), v. FEDCAP REHABILITATION SERVICES INC., JOSEPH GIANNETTO and MARCIA O'BRIEN, Defendant(s).
NYSCEF DOC. NO. 93
DECISION/ORDER
ROBERT R. REED, J.
Motion sequence numbers 003 and 004 are consolidated herein for disposition.
Plaintiff filed suit against defendants Fedcap Rehabilitation Services Inc. (Fedcap), Joseph Giannetto (Giannetto), and Marcia O'Brien (O'Brien) claiming, inter alia, that defendants discriminated against him based on his status as an African American with a prior criminal conviction in violation of the New York City Human Rights Law.
In motion sequence number 003, plaintiff moves, pursuant to CPLR 3101, for an order extending the discovery period and compelling production of documents and individuals for deposition. In motion sequence number 004, defendants move, pursuant to CPLR 3103, for a protective order.
Plaintiff seeks the following additional discovery: (1) emails between plaintiff and Dr. Grubin from April 1, 2015 - October 2015; (2) emails and communications from Yvette Torres; (3) documents concerning the performance of certain specified clinics while under plaintiff's supervision; (4) monthly clinic meeting agendas; (6) communications concerning the authority of plaintiff and Marcia O'Brien; (6) employment history of Katherine Strickland; (7) employment history of managers who were targeted by multiple complaints; (8) results of the investigation of a sexual harassment complaint by Melissa Ramirez; (9) personnel files of decision makers; (10) last known address of Andrew Lewis; (11) information about the position of Bushwick Clinic Administrator; and (12) depositions of Grant Collins, Joseph Giannetto, and Christine McMahon.
The portion of plaintiff's motion that seeks additional time for discovery and extension of time for the filing of the note of issue is granted.
DISCUSSION
A trial court is vested with broad discretion regarding discovery, and its determination will not be disturbed absent a demonstrated abuse of that discretion (see 148 Magnolia, LLC v. Merrimack Mut. Fire Ins. Co., 62 AD3d 486). CPLR § 3101(a) requires full disclosure of all evidence material and necessary to the prosecution or defense of an action (see CPLR 3101(a); see also MSCI Inc. v. Jacob, 120 AD3d 1072). "Material and necessary" has been interpreted to mean any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay (see Friel v. Papa, 87 AD3d 1108). As a matter of policy, New York strongly encourages open and full disclosure (see Andon v. 302-304 Mott St. Assoc., 94 NY2d 740). While the scope of disclosure provided by the statute is generous, broad, and is to be construed liberally, unlimited disclosure is not permitted (see McKinney's CPLR 3101; see also Spohn-Konen v Town of Brookhaven, 74 AD3d 1049).
CPLR 3103(a) provides that a court may issue a protective order denying, limiting, conditioning, or regulating the use of any disclosure device in order to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to the other party (see CPLR 3013(a)). "An individual or entity who seeks a protective order bears the initial burden to show either that the discovery sought is irrelevant or that it is obvious the process will not lead to legitimate discovery" (Liberty Petroleum Realty, LLC v Gulf Oil, L.P., 164 AD3d 401 [1st Dept]).
Pursuant to CPLR § 3124, the Court may compel compliance upon failure of a party to provide discovery. It is within the Court's discretion to determine whether the materials sought are "material and necessary" as legitimate subject of inquiry or are being used for purposes of harassment to ascertain the existence of evidence (see Roman Catholic Church of the Good Shepherd v. Tempco Systems, 202 A.D. 2d 257 [1st Dept., 1994]).
I. Plaintiff's Motion to Compel (Motion Sequence No. 003)
Plaintiff contends that the additional discovery sought is material and necessary to the prosecution of its claims against defendants. Plaintiff argues that the requested discovery will tend to provide explanations for the proffered adverse actions taken by defendants against plaintiff.
Defendants counter that discovery has ended pursuant to a "so-ordered" stipulation. This argument is unpersuasive. Defendants also argue plaintiff is seeking to re-litigate discovery disputes that have already been decided by this court on January 26, 2017. This argument is without merit. The referenced motion was denied as academic because of the conference order dated January 26, 2017. Plaintiff has identified the document demands that support the relief sought in this motion. Therefore, this decision and order grants plaintiff's motion is part and denies plaintiff's motion in part.
II. Defendants' Motion for a Protective Order (Motion Sequence No. 004)
Defendants move separately under motion sequence 004 for a protective order preventing plaintiff from taking a deposition of Christine McMahon, President and CEO of Fedcap. Defendants argue that McMahon has no direct knowledge and was not a party to any non-privileged communications regarding plaintiff or the instant litigation. Considering plaintiff's request to depose Giannetto, the court is not satisfied on the record before it that McMahon should sit for a deposition. Plaintiff has failed to show that her testimony would be unique or unavailable from other sources.
Accordingly, it is hereby
ORDERED that plaintiff's motion (sequence number 003) to compel is granted in part to the extent that is
ORDERED that defendants shall produce to plaintiff, on or before November 30, 2018, responses to the following discovery demands: (1) emails between plaintiff and Dr. Grubin from April 1, 2015 - October 2015; (2) emails and communications for Yvette Torres; (3) documents concerning the performance of the clinics under plaintiff's supervision; (4) monthly clinic agendas for the period between June 15 - September 30, 2015; (5) last known address of Andrew Lewis and (6) information about the position of Bushwick Clinic Administrator; and it is further
ORDERED that the parties must schedule the depositions of Grant Collins and Joseph Giannetto within 60 days of the entry of this order on a date and at a time convenient to both sides; and it is further
ORDERED that defendants' motion (motion sequence number 004), pursuant to CPLR 3103, for a protective order is granted to the extent that Christine McMahon need not appear for a deposition; and it is further
ORDERED that plaintiff shall file a note of issue/certificate of readiness on or before January 25, 2019; and it is further
ORDERED the counsel are directed to appear for a status conference in room 581 at 111 Centre Street on January 17, 2019, at 2:30 pm. Dated: New York, New York
November 8, 2018
ENTER:
/s/_________
J.S.C.