[*1]
D'Alessandro v Nassau Health Care Corp.
2014 NY Slip Op 51073(U) [44 Misc 3d 1210(A)]
Decided on July 17, 2014
Supreme Court, Nassau County
Marber, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on July 17, 2014
Supreme Court, Nassau County


Mary D'Alessandro, as Administratrix of the Estate of Anthony Michael D'Alessandro, Plaintiff,

against

Nassau Health Care Corporation, NASSAU UNIVERSITY MEDICAL CENTER, JATINDER SINGH, M.D., DR. STEPHENS, M.D., PAUL E. SCOTT, M.D. and JANE A. BALDWIN, , Defendants.




000894/13



Thomas O. O'Connor, Esq.



Ansa Assuncao, LLP



Attorneys for Plaintiff



707 Westchester Avenue, Suite 309



White Plains, NY 10604



(914) 298-2260



Bartlett, McDonough & Monaghan, LLP



Attorneys for Defendants, Nassau Health, Nassau University, Singh, Stephens, Scott



670 Main Street



Islip, NY 11751



(631) 277-0300



Pillinger Miller Tarallo, LLP



Attorneys for Defendant, Baldwin



570 Taxter Road, Suite 275



Elmsford, NY 10523



(914) 703-6300


Randy Sue Marber, J.

Papers Submitted:



Notice of Motion...................................x



Expert Affidavit....................................x



Expert Affidavit....................................x



Affirmation in Opposition.....................x



Reply Affirmation..................................x



Upon the foregoing papers, the Motion brought pursuant to CPLR § 3124 by the Plaintiff, MARY D'ALESSANDRO, as Administratrix of the Estate of Anthony Michael D'Alessandro, (hereinafter "Plaintiff") seeking to compel the Defendant, JANE A. BALDWIN (hereafter "BALDWIN") to provide authorizations for her cellular phone records and the cellular phone records of Robert J. Baldwin, is decided as provided herein.



This action arises from an accident that occurred on April 4, 2012, when the Plaintiff's son, Anthony Michael D'Alessandro, a pedestrian, was struck by the Defendant, Baldwin's vehicle and died from injuries he sustained as a result therefrom.



In the instant motion, the Plaintiff seeks to compel the Defendant, Baldwin, to provide authorizations to obtain her cellular phone records and the cellular phone records of Robert J. Baldwin and any other cellular phone records for any mobile/cellular phone in the vehicle driven by the Defendant, Baldwin, for the period of time from 8:00 p.m. to 10:00 p.m. on the April 4, 2012. The Plaintiff's counsel contends that the basis upon which the Plaintiff is entitled to the records is that the Defendant, Baldwin, was "distracted and inattentive at the time of the Accident". (See Affirmation of Thomas O. O'Connor, Esq., dated 4/16/14 at ¶ 4)



The Plaintiff supports the motion to compel the Defendant, Baldwin, to provide authorizations for the cellular phone records with the Affidavits of its' experts, William T.C. Neale, M.Arch. and Michael J. Kuzel, P.E. Mr. Neale is the Director of Visualization for Kineticorp, LLC, a company which specializes in accident analysis and reconstruction. He performed a visibility study concluding that the Defendant, Baldwin, would have been able to see the pedestrians in the roadway for over five (5) seconds prior to the impact with the decedent.



Mr. Kuzel, a licensed Professional Engineer in Arizona, rendered an opinion with regard to the cause of the accident. He concluded that based upon his analysis, the Defendant, Baldwin, was inattentive or distracted. He contends that this distraction may have been caused by cellular telephone usage.



Based upon the above expert opinions, the Plaintiff's counsel requests that this Court compel the Defendant, Baldwin, to provide authorizations to obtain the cellular phone records demanded in order to determine if she was using her cell phone or any one else's cell phone at the time of the accident.



In opposition to the Plaintiffs' motion, the Defendant's counsel argues that the Plaintiff's counsel's claim that the Defendant, Baldwin, was inattentive and/or distracted because she was using a cell phone is a substantial leap. He argues that the cases the Plaintiff's counsel cites are not on point and are distinguishable from the facts in the instant matter. Specifically, the Defendant's counsel argues that the cases relied upon by the Plaintiff all permitted the disclosure of cell phone records because there was some indicia of the driver using his or her cell phone. In the instant matter, the Defendant's counsel argues, there is no factual basis to support the premise that the [*2]Defendant, Baldwin, was using any cell phone at the time of the accident. The Defendant's counsel argues that the Plaintiff's claim that the Defendant was inattentive is pure speculation and as such is insufficient to require the Defendant to provide authorizations for the Plaintiff to obtain private cellular phone records.



The Defendant's counsel cites Morano v. Skanska, Inc., 18 Misc 3d 464 (Sup. Ct. Qns. Cty. 2007) in support of his argument. The Court in Morano reasoned that just because a person possesses a cell phone at the time of the accident, unless there is some witness testimony that it was being used at that time, there is a privacy interest in the cellular records and the Plaintiff would not be entitled to those records. Such discovery would be a fishing expedition.



CPLR § 3101 (a) sets forth the criterion for disclosure under the CPLR, requiring "full disclosure of all matter material and necessary in the prosecution or defense of an action." Requests for disclosure, however, may not be overbroad, burdensome, or lacking in specificity and they may not seek irrelevant information. Osowski v. AMEC Constr. Mgt., Inc., 69 AD3d 99, 106 (1st Dept. 2009). The words material and necessary are to be liberally interpreted 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." Allen v. Crowell-Collier Publishing Co., 21 NY2d 403, 406-407 (1969) The test to determine if the information sought is material and necessary is one of usefulness and reason. Id.



The principle of full disclosure does not, however, give a party the right to uncontrolled and unfettered disclosure. Matters relating to disclosure lie within the broad discretion of the trial court which is in the best position to determine what is material and necessary. Buxbaum v. Castro, 82 AD3d 925 (2d Dept. 2011).



There is no direct evidence that the Defendant, Baldwin, was using a cell phone at the time of the accident. The Plaintiff's conclusory assertions, based upon the experts' opinions that the Defendant, Baldwin, may have been using a cell phone, which may have caused her to be inattentive or distracted, is completely speculative and is not supported by any direct evidence. (See Carpio v. Leahy Mechanical Corp., 30 AD3d 554, [2d Dept. 2006]) Thus, it is the opinion of this Court that the Plaintiff's request for the Defendant, Baldwin, to provide authorizations for cellular phone records amounts to nothing more than a fishing expedition. (See Auerbach v. Klein, 30 AD3d 451 [2d Dept. 2006])



Accordingly, it is hereby



ORDERED, that the Motion brought by the Plaintiff seeking to compel the Defendant, Baldwin, to provide authorizations to obtain the cellular phone records of the Defendant and Robert J. Baldwin, is DENIED.



This constitutes the decision and Order of the court.



DATED:Mineola, New York



July 17, 2014



______________________________



Hon. Randy Sue Marber, J.S.C.