Upon the reading and filing of the following papers in this matter and the matter having been transferred to the inventory of Honorable Sanford N. Berland on July 26, 2017; (1) Notice of Motion and supporting papers made by plaintiff, dated June 27, 2017; (2) Affirmation in opposition and supporting papers made by defendants Keyspan Corporation, National Grid Electric Services, LLC and John J. Di Prima i/s/h/a John J. Dierima, dated July 19, 2017; and (3) Affirmation in reply made by plaintiff, dated July 25, 2017; it is

ORDERED that plaintiff's motion seeking to strike the Answer of the defendants pursuant to CPLR 3126 is hereby denied; and it is further

ORDERED that the attorneys-of-record are directed to appear for a compliance conference on Tuesday, September 26, 2017, at 9:30A.M. in Part 6, of the Cromarty Court Complex, located at 210 Center Drive, Riverhead, New York to discuss all remaining matters.

This is an action seeking damages for injuries allegedly sustained by the plaintiff, Maria Figueroa, on November 28, 2012, when the motor vehicle in which she was a passenger was struck by a motor vehicle owned by defendant Keyspan Corporation ("Keyspan") and operated by defendant John J. Di Prima (incorrectly sued as "John J. Dierima") ("Di Prima") and then collided with a third vehicle at or near the intersection of Route 111 and Brier Street in the Town of Islip. In addition to Keyspan and Di Prima, the plaintiff has named as defendants National Grid Electric Services, LLC and the owners and drivers, respectively, of the vehicle in which she was a passenger and of the third vehicle.

A number of other actions, by or on behalf of other individuals who claim injuries allegedly attributable to the same February 28, 2012 accident, have also been commenced. At his February 21, 2017 Examination Before Trial in this and the other actions, Mr. Di Prima testified that he did not see the vehicle in which plaintiff was riding, a green Honda Civic, until "[a] second" before the collision when, he asserted, "it pulled out in front of [him]" from a side street and across the road as he was traveling north on Route 111. He estimated that, at that point, the distance between his vehicle and the green Civic was "10, 12 feet." In response to questioning from a number of attorneys, he further testified that he was not using a cell phone or GPS device or listening to his vehicle's radio at the time of the accident, was not eating, drinking or smoking and did not have a workbook to complete inside the vehicle. He was asked, twice, if he had taken his eyes off the roadway to look down or to the side "at any time prior to the accident," and in each instance he indicated that he could not recall doing so, although the second time he allowed that he "might have checked the mirrors." He acknowledged that he was aware at the time of accident that there were cameras inside his vehicle focused on him and on the road ahead of the vehicle, but testified that he had not reviewed any videos from them nor had National Grid discussed them with him.

A video has, however, been produced to the plaintiff by counsel for Keyspan and Mr. Di Prima (although none of the papers indicate whether that production took place before or subsequent to Mr. Di Prima's deposition). As described in correspondence antecedent to the current [*2]motion and annexed as an exhibit to defense counsel's opposing affirmation, the video that was previously produced was "taken by the camera within the vehicle" and is "of Mr. Di Prima at the time of the accident." According to plaintiff's counsel, the video shows Mr. Di Prima looking downward for approximately 3.5 seconds and then looking back up immediately prior to impact while "music and/or rhythmic sounds can be heard in the background." Although defendants — who have incorporated plaintiff's exhibits into their opposition by reference - do not appear to dispute that the onboard recording shows Mr. Di Prima looking down at some point prior to the collision or that there is music or "rhythmic sound" on the audio track, they do take issue with plaintiff's assessment of the exact length of and point in time when Mr. Di Prima was looking down, contending that the video makes "clear that Mr. Di Prima was looking forward at the roadway less than 2 seconds prior to impact."

On March 29, 2017, plaintiff served a "Notice for Discovery & Inspection" on counsel for defendants Keyspan and Di Prima that, although not very clearly drafted, apparently was intended to seek

1. An authorization to obtain records from any/all electronic devi[c]e(s), or motor vehicle devi[c]e(s) owned by either John J. Di Prima or Keyspan, in use 5 minutes prior to the happening of the accident.

(The "device record authorization demand" or "March 29 notice.") Defendants timely responded to the device record authorization demand in a letter from counsel dated April 12, 2017, referencing a prior letter they had written (also dated March 29, 2017) "reject[ing]" a "post-deposition" demand plaintiff's counsel had made for an authorization for Mr. Di Prima's telephone records, and "declin[ing]" the device record authorization demand as well. In both instances, defense counsel grounded its response in the claimed absence of "a reasonable belief" (as well as, in the first instance, of any testimony) that the phone or device was in use "at the time of the accident." According to plaintiff, the defendant again declined to "comply" with the March 29 notice when a response to the notice was requested, by plaintiff, at a May 16, 2017 compliance conference in this case, before the Hon. Daniel Martin, and Justice Martin then authorized the filing of "this motion." Thereafter, the case was reassigned to this Part.

Plaintiff now moves for an Order pursuant to CPLR 3124 and 3126 striking the answer of Keyspan, Di Prima and National Grid Electric Services, LLC for failure to provide demanded discovery. The only discovery plaintiff claims has not been provided to her is the discovery sought in her March 29, 2017 notice. She argues that the records sought by that demand are material and necessary to the prosecution of her claims and that the defendants' refusal to provide it is willful and without basis. The defendants oppose the motion, arguing that plaintiff has failed to establish, and the record does not show, that they have engaged in any conduct that would warrant the striking of their answer, that there has been no order requiring that the discovery sought in the March 29 notice be provided, and that, indeed, the plaintiff is not entitled to that discovery. Further, defendants ask that the court exercise its discretion and strike the plaintiff's discovery demand.

"The determination whether to strike a pleading for failure to comply with court-ordered disclosure lies within the sound discretion of the trial court" (Fishbane v Chelsea Hall, LLC, 65 AD3d 1079, 885 NYS2d 718 [2d Dept 2009]; see Apladenaki v Greenpoint Mtge. Funding, Inc., 117 AD3d 976, 986 NYS2d 589 [2d Dept 2014]; Arpino v F.J.F. & Sons Elec. Co. Inc., 102 AD3d 201, 959 NYS2d 74 [2d Dept 2012]). "However, the drastic remedy of striking a pleading pursuant to CPLR 3126 should not be imposed unless the failure to comply with discovery demands or orders is clearly willful and contumacious. Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery, coupled with inadequate explanations for the failures to comply or a failure to comply with court-ordered discovery over an extended period of time" (Orgel v Stewart Tit. Ins. Co., 91 AD3d 922, 938 NYS2d 131 [2d Dept 2012]; see Rock City Sound, Inc. v Bashian & Farber, LLP, 83 AD3d 685, 920 NYS2d 394 [2d Dept 2011]).

The requisites for the sanction plaintiff seeks clearly are not met here. As a threshold matter, a party is "not entitled to sanctions under CPLR 3126 without first moving to compel accompanied by an affirmation that they made a good faith effort to resolve the discovery dispute" (Charter One Bank, FSB v Houston, 300 AD2d 429, 751 NYS2d 573 [2d Dept 2002]). No such motion has been made by plaintiff, nor is the disclosure she is seeking otherwise court-ordered. In addition, the March 29 notice was not even directed to one of the three defendants against whom sanctions are now sought, National Grid Electric Services, LLC, and the two defendants to whom the notice was directed made a timely response to it, articulating "with [*3]reasonable particularity the reasons for [their] objection." [CPLR 3122[a].] In short, it cannot be said that defendants' refusal to provide the demanded discovery was willful and contumacious. Accordingly, plaintiff's motion to strike the defendant's answer must be denied.

So must the defendants' request that the court exercise its discretion to strike the plaintiff's March 29 device record authorization demand. It is now settled that cellphone call records and records, whether externally made and maintained or internally stored, showing the use of other mobile electronic devices are, in appropriate circumstances, and within defined parameters, discoverable. (D'Allesandro v Nassau County Medical Center,137 AD3d 1195, 29 NYS3d 382 [2d Dept 2016]; Detraglia v Grant, 68 AD3d 1307, 890 NYS2d 696 [3d Dept 2009]; see e.g., Morano v Slattery Skanska, Inc., 18 Misc 3d 464, 846 NYS2d 881 [Sup. Ct. 2007]). However, as with any form of disclosure,

"It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims"

(D'Allesandro v Nassau County Medical Center, supra,29 NYS3d at 384, quoting Crazytown Furniture v Brooklyn Union Gas Co., 150 AD2d 420, 421, 541 NYS2d 30[2d Dept 1989], and also citing Quinones v 9 E. 69th St., LLC, 132 AD3d 750, 18 NYS3d 106 [2d Dept 2015]). Further, in recognition of the privacy interests that are potentially implicated, courts, before compelling disclosure of records showing the use of such devices, have generally required some threshold showing indicative of, or at least consistent with, cellphone or other electronic device use at the relevant time, (see D'Allesandro v Nassau County Medical Center, supra; Detraglia v Grant, supra; Carpio v Leahy Mech. Corp., 30 AD3d 554, 816 NYS2d 762 [2d Dept 2006]) and, when they have compelled disclosure, have generally limited the disclosure to records covering very narrow time periods and sometimes have made the disclosure subject, in the first instance, to in camera review. (Detraglia v Grant, supra; AllianceBernstein L.P. v Atha, 100 AD3d 499, 954 NYS2d 44 [1st Dept 2012]; Fernandez v Castle Provisions, Inc., 2013 WL 9861634 [Sup. Ct.]).

Here, plaintiff claims, and the defendants do not dispute, that the audio track of the onboard video produced by defendants indicates that "music and/or rhythmic sounds" were audible in the vehicle Mr. Di Prima was driving at the time of the accident. Mr. Di Prima testified that he was not listening to the vehicle's radio at that time. Although Mr. Di Prima was not asked at his deposition whether he was listening to some device other than the vehicle's radio, the absence of such questioning may be a function of the timing of the production of the video to plaintiff by defendants, a matter with respect to which the current record is silent. Likewise, although plaintiff and defendants disagree about the length of time, in seconds, Mr. Di Prima was looking forward just prior to the accident, there seems to be no dispute that he was looking in a downward direction for some number of seconds prior to that. Apart from Mr. Di Prima's testimony that he saw the vehicle in which plaintiff was a passenger for only "a second" prior to the collision, when his vehicle was in very close proximity to that other vehicle, and that he could not recall taking his eyes off the road prior to the accident, he was not questioned specifically about the reason for his downward gaze, as depicted on the video, before he looked up, again perhaps because of the timing of the video's production to defendants. In these circumstances, it cannot be concluded that plaintiff has not made the showing necessary to justify discovery of records relating to the cell phone or other electronic device or devices, if any, Mr. Di Prima was or may have been using in the limited time period for which plaintiff is requesting discovery of those records.

The parties are reminded of the previously scheduled compliance conference to be held before this Court on Tuesday, September 26, 2017, at 9:30A.M.