Plaintiff has filed a Notice of Motion seeking an order pursuant to CPLR Rule 3124 and §3126 and Uniform Rule 221.2 compelling the re-appearance of the defendant for a continuation of his deposition that was conducted on October 8, 2024, for the purpose of being permitted to ask certain questions that defendant's counsel objected to and instructed the defendant to not answer. See Notice of Motion dated and filed November 12, 2024, with supporting attorney affirmation and exhibits, Doc. Nos. 8-15. The motion was given a return date of January 9, 2025, which pursuant to CPLR Rule 2214 (b) (and under the Court's IAS Rules) required opposing papers to be filed by January 2. 2025. As of the drafting and issuance of this Decision and Order on today's date, January 6, 2025, no opposing papers are of record in the NYSCEF docket, and the Court is accepting the motion on submission for consideration without in-person oral argument.

The motion issue and relief sought is not entirely newly presented to the Court. During the defendant's deposition the dispute and disagreement between counsel on a series of proposed questions that plaintiff's counsel wanted to ask the defendant reached the point of discord where a call was made to the Court during the deposition to have some guidance given with regard to [*2]whether the questions were appropriate and could be asked. The disputed subject matter involved proposed questioning of the defendant about his ownership, maintenance, and inspection practices over thirteen (13) other residential rental properties. Defendant's counsel objected to plaintiff's counsel's attempt to begin asking questions on that subject matter "on the basis of materiality." Dkt. No. 13, Defendant's EBT, Pg. 18, l. 12-13. Plaintiff's counsel asked if the objection was based on falling "outside the scope of Article 31 in the CPLR," which defense counsel answered affirmatively. Dkt. No. 13, Pg. 18, l. 21-25. The above-noted call to the Court followed that exchange.

After a brief telephone conference, the Court reserved making a determination on the disputed questions and asked the parties to complete the deposition by making a record of the subject questions with continuing objections as necessary for the purpose of preparing a record that could be used and referred to if the issue remained unsettled to the point where a motion would need to be made. Dkt. No. 13, Pg. 19, l. 3-17[1]). The deposition proceeded along those lines with the proposed question(s) and objections relating to the other rental properties (see Dkt. No. 13, beginning at Pg. 22., l. 7 through Pg. 24., l. 6 and Pg. 25, l. 22 through Pg. 27).

The Court of Appeals and Appellate Divisions have extensively digested the issue of what constitutes permissible and widely/liberally allowable discovery under Article 31 since the Legislature amended CPLR § 3101 (a) in 1993, when the scope of discovery was revised from "evidence material and necessary" to "matter material and necessary (italics added)." (CPLR 3101 Practice Commentaries, Patrick M. Connors, C3101:7.) Most recently, the Court of Appeals addressed the issue in Forman v. Henkin, 30 NY3d 656 (2018):

"Disclosure in civil actions is generally governed by CPLR 3101(a), which directs: "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." We have emphasized that "[t]he words, 'material and necessary', are ... to be interpreted liberally 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. The test is one of usefulness and reason" (Allen v. Crowell—Collier Publ. Co., 21 NY2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430 [1968]; see also Andon v. 302—304 Mott St. Assoc., 94 NY2d 740, 746, 709 N.Y.S.2d 873, 731 N.E.2d 589 [2000] ). A party seeking discovery must satisfy the threshold requirement that the request is reasonably calculated to yield information that is "material and necessary"—i.e., relevant—regardless of whether discovery is sought from another party (see CPLR 3101[a][1] ) or a nonparty (CPLR 3101[a][4]; see e.g. Matter of Kapon v. Koch, 23 NY3d 32, 988 N.Y.S.2d 559, 11 N.E.3d 709 [2014]). The "statute embodies the policy determination that liberal discovery encourages fair and effective resolution of disputes on the merits, minimizing the possibility for ambush and unfair surprise" (Spectrum Sys. Intl. Corp. v. Chemical Bank, 78 NY2d 371, 376, 575 N.Y.S.2d 809, 581 N.E.2d 1055 [1991] ). The right to disclosure, although broad, is not unlimited. CPLR 3101 itself "establishes three categories of protected materials, also supported by policy considerations: privileged matter, absolutely immune from discovery (CPLR 3101[b] ); attorney's work product, also absolutely immune (CPLR 3101[c] ); and trial preparation materials, which are subject to disclosure only on a showing of substantial need and undue hardship" (Spectrum, at [*3]376—377, 575 N.Y.S.2d 809, 581 N.E.2d 1055)."

Id. at 661-662.

The vast panoply of all reported cases relating to discovery dispute litigation involves the production of documentary materials (so-called "paper discovery"), mostly related to disagreement about the appropriate scope of relevant disclosure that should be made of medical records and authorizations in personal injury actions, and a variety of other records in those and many other types of cases, e.g., tax returns, personnel file material, school records, social security filings, and more recently, cell phone records and social media (Forman, supra). The scope of deposition questioning does not make its way into the caselaw as prominently as other discovery issues for at least two reasons: (1) CPLR Rule 3115 (a) preserves all objections (except as otherwise explicitly permitted) up to the time of trial, and CPLR § 3101 (b), (c) and (d) lay out those exceptions for privileged matter, attorney work product, and trial preparation; and (2) Uniform Rule 221.1 and 221.2, both of which strongly reinforce the recognition and application of the aforesaid CPLR provisions.

In essence, it seems that just about everything is open for disclosable discussion during a deposition so long as the subject matter does not intrude upon or invade the protected and confidential areas of privileged material in CPLR § 3101 (b), (c), and (d). Going as far back as 1968, the Court of Appeals, in Allen v. Crowell-Collier Publishing Co., 21 N.Y2d 403 (1968), emphasized the liberal exercise of discovery discretion that should be employed by the courts under the following test:

"The words, "material and necessary", are, in our view, to be interpreted liberally 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. The test is one of usefulness and reason. CPLR 3101 (subd. [a]) should be construed, as the leading text on practice puts it, to permit discovery of testimony "which is sufficiently related to the issues in litigation to make the effort to obtain it in preparation for trial reasonable" (3 Weinstein-Korn-Miller, NY Civ. Prac., par. 3101.07, p. 31-13)."

Id. at 406-407.

The caselaw on the liberal exercise of permitting all forms of discovery, however, remains tied to a threshold showing that, "[a] party seeking discovery must satisfy the threshold requirement that the request is reasonably calculated to yield information that is 'material and necessary' — i.e., relevant- (Forman, 30 NY3d 661, 70 N.Y.S.3d 157, 93 N.E.3d 882)." Brennan v. Demydyuk, 196 AD3d 1113 (4th Dept. 2021) (reversing the lower court's order that defendant produce cell phone, credit card receipts and other billing records for food and beverage purchases, all purportedly related to exploring how those materials may have reflected on whether he was the operator of his vehicle even though he had already admitted that he was the operator in effect, the "fishing expedition" of other discovery on an issue that was not in dispute was not "material and necessary"). A year later, the Fourth Department saw the possible, but not yet conclusively determinable, usage by plaintiff of a cell phone prior to a collision as being sufficiently relevant to allow discovery and inspection of the plaintiff's cell phone device to see all forms of usage, including texting and online internet usage which were not disclosed on the provider's records that had been previously produced. Tousant v. Aragona, 208 AD3d 1044 (4th Dept. 2022).

A determination on the proper and allowable scope of the disputed discovery in the [*4]present case starts with analyzing where it drops between the Brennan and Tousant relevance spectrum of threshold discovery compulsion. Other than making a standard argument that essentially everything is "fair game" for discovery under Article 31 (and particularly under Rule 3115 and § 3101) and citing the much-respected application of Uniform Rules 221.1 and 221.2, plaintiff does not specify or articulate exactly what or why he is seeking information about the defendant's maintenance behavior at other rental properties owned by him or how that behavior, whatever it may turn out to be, relates to any of the legally relevant elements of liability at issue in this case. The facts in the one case cited and attached by plaintiff as an exhibit (Dkt. No. 15) in support of the motion's argument that everything is open for disclosure during a deposition and not subject to any prohibitory objections except those matters barred by privilege or work product/trial preparation, is clearly distinguishable from the facts presented in this case. In Lunt v. Mt. Sinai Hosp., 22 NY Slip Op 32468(U). **3, (Sup. Ct., New York County, 2010), the questioning allowed by the court related directly to photos of the body part and alleged injuries claimed by the plaintiff to be the subject of defendant's negligence. The dispute centered on the authenticity and veracity of the photos (date, time, place when taken). Unlike the subject matter of the present case, the discord in Lunt on whether to allow questions using those photos was plainly related to the subject matter of the lawsuit for which the court allowed questioning, while cogently acknowledging along the way that allowing the questioning at deposition did not open the door to any admissibility at trial. 22 NY Slip Op 32468(U), **5.

The sole legal liability issue in this case centers on whether there was a defective or dangerous condition in the property where the plaintiff's decedent fell and if the defendant created or had actual or constructive notice of that condition, at that property, prior to the time of the incident alleged in the complaint. All of the elements of the plaintiff's case against the defendant on the issue of his landowner/landlord liability relate to his ownership, inspection, maintenance, repair, and what he saw or knew or should have seen and/or known of the condition(s) of the property where the plaintiff's decedent fell and was injured nowhere else. The only relevant "material" information is pinned to what the defendant did or didn't do and/or saw or should have seen, and failed to act upon, at the property where the plaintiff's decedent fell. Even evidence of other alleged incidents of prior injury at the property where this incident occurred would not be admissible unless they involved the same dangerous or defective condition(s) alleged in this action. Sawyer v. Dries & Krump Mfg. Co., 67 NY2d 328 (1986).

Questions about the defendant's potential lack of interest or laziness, or shear time constraints, in not adequately overseeing the condition of all his properties, or failing to hire a property manager or others to take on such responsibilities as opposed to putting himself up against the wall of not adequately handling his ownership responsibilities (which he now finds himself up against), may allow one to make a superfluous, even foul judgment call of his overall capacity and character as an absentee landlord of multiple residential properties, but those questions (and answers) would not add anything to assisting the finder of fact on the elements of liability associated with the defendant's legal obligations and duties over and upon the property where the incident alleged in the complaint occurred. Indeed, even if allowed for exploratory purposes, it is highly doubtful that any of such questions would be admissible at trial. Lunt, supra. So, what is the purpose, and what is to be gained, from incurring the time, energy, expense and inconvenience of putting the parties and counsel through that exercise?

Based on what is before the Court, particularly the absence of any persuasive reasoning of what and how any possible failings or faults on the part of the defendant in his role as a multi-[*5]unit owner of multiple residential properties have some measure of "material and necessary" relevance to the specific elements of landowner liability on the property where the incident alleged in the complaint occurred, the motion fails on the baseline discovery threshold, and would be denied in its entirety if that was the full and final analysis to be given. The saving grace that affords granting the plaintiff a modified measure of the motion's requested relief is rooted in the explicit legislative and rule-making depth and breadth of deposition questioning allowed as a matter of law, preserving all objections for trial per CPLR 3115, except for those addressed to the patently impermissible questions prohibited under CPLR 3101.

With the above as the basis for the disposition of this motion it is hereby,

ORDERED, that the plaintiff's motion pursuant to CPLR Rule 3124 and Uniform Rule 221.2 is GRANTED in part as hereinafter set forth in the succeeding decretal paragraphs and denied as to any collateral grounds for relief notated in the motion to have been made pursuant to CPLR Rule 3126; and it is further

ORDERED, that the supplemental deposition of the defendant shall be conducted within 30 days from the date this Decision and Order is uploaded in NYSCEF and shall be conducted at the Court, 50 Delaware Avenue, Buffalo, New York, Part 36, on a date and time cleared with and under the supervision of the Court's Principal Law Clerk and be deemed waived if not so scheduled and conducted; and it is further

ORDERED, that all arrangements for the in-person attendance of a court reporter to cover the deposition (no access will be provided to the court's video equipment for any virtual conducting of this proceeding) shall be handled by and at the sole cost of plaintiff (including no allowance for said cost to be charged or included as a cost or disbursement under CPLR Articles 81 and 82 in any future statement for judgment or bill of costs); and it is further

ORDERED, that no questions shall be asked at the upcoming deposition except for those previously articulated and objected to as set forth on Pages 22 through 28 in the transcript of the defendant's deposition dated October 8, 2024; and it is further

ORDERED, that all other remaining and outstanding discovery in this action including any further party or non-party depositions, shall be completed (or noticed and conducted within the time required to be completed) within sixty days from the date this Decision and Order is uploaded in NYSCEF, and plaintiff shall file a note of issue and statement of readiness on or before March 7, 2025.