Opinion
1073 CA 15-00201.
10-09-2015
Bonnie J. SARAVULLO, Plaintiff–Appellant, v. Herbert M. TILLOTSON, Defendant–Respondent.
William Mattar, P.C., Williamsville (John E. Abeel of Counsel), for Plaintiff–Appellant. Kenney Shelton Liptak Nowak LLP, Rochester (Richard C. Brister of Counsel), for Defendant–Respondent.
William Mattar, P.C., Williamsville (John E. Abeel of Counsel), for Plaintiff–Appellant.
Kenney Shelton Liptak Nowak LLP, Rochester (Richard C. Brister of Counsel), for Defendant–Respondent.
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND VALENTINO, JJ.
Opinion
MEMORANDUM:In this personal injury action arising from a motor vehicle accident, plaintiff appeals from an order granting defendant's motion in part by directing plaintiff to provide Supreme Court with her cell phone records for in camera review. Although it is true, as plaintiff contends, that defendant did not make the good faith effort required by 22 NYCRR 202.7 to resolve the discovery dispute prior to filing the motion, the court properly concluded that, inasmuch as plaintiff had previously refused defendant's request to release the records, defendant's failure to comply with the above rule may be excused because “any effort to resolve the [discovery] dispute non-judicially would have been futile” (Yargeau v. Lasertron, 74 A.D.3d 1805, 1806, 904 N.Y.S.2d 840 [internal quotation marks omitted] ).
We reject plaintiff's further contention that the court abused its discretion in refusing to deny the motion as untimely. “Where additional discovery is sought more than 20 days after the filing of the note of issue, the moving party must demonstrate unusual or unanticipated circumstances and substantial prejudice absent the additional discovery” (Blinds To Go [US], Inc. v. Times Plaza Dev., L.P., 111 A.D.3d 775, 775, 975 N.Y.S.2d 355 ). Here, the note of issue was filed on June 11, 2014, and defendant's motion to compel was served on June 27, 2014, within the 20–day period. Thus, defendant was not required to show unusual or unanticipated circumstances; instead, defendant merely had to demonstrate that discovery was not complete (see 22 NYCRR 202.21 [e]; Gallo v. SCG Select Carrier Group, L.P., 91 A.D.3d 714, 714–715, 936 N.Y.S.2d 900 ), which he did in fact show based on plaintiff's refusal to authorize the release of her cell phone records as requested by defendant before the note of issue was filed.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.