McCann v. Harleysville Ins. Co. of N.Y.

• Decision Date: 12 November 2010
• Citation: 78 A.D.3d 1524,910 N.Y.S.2d 614
• Parties: Kara R. McCANN, Plaintiff-Respondent, v. HARLEYSVILLE INSURANCE COMPANY OF NEW YORK, Defendant-Appellant. (Appeal No. 1.).
• Court: New York Supreme Court — Appellate Division

910 N.Y.S.2d 614

78 A.D.3d 1524

Kara R. McCANN, Plaintiff-Respondent,

v.HARLEYSVILLE INSURANCE COMPANY OF NEW YORK, Defendant-Appellant. (Appeal No. 1.).

Supreme Court, Appellate Division, Fourth Department, New York.

Nov. 12, 2010.

Chelus, Herdzik, Speyer & Monte, P.C., Buffalo (Christopher R. Poole of Counsel), for Defendant-Appellant.

Anspach Meeks Ellenberger LLP, Buffalo (David M. Stillwell of Counsel), for Plaintiff-Respondent.

PRESENT: MARTOCHE, J.P., LINDLEY, SCONIERS, PINE, AND GORSKI, JJ.

MEMORANDUM:

Plaintiff commenced an action seeking damages for injuries she sustained when the vehicle she was operating collided with a vehicle driven by defendant's insured. Plaintiff thereafter settled that action and commenced the instant action against defendant seeking " supplementary uninsured/underinsured motorist coverage." In appeal No. 1, defendant appeals from an order denying its motion to compel disclosure of photographs and seeking "an authorization for plaintiff's Facebook account." According to defendant, the information sought was relevant with respect to the issue whether plaintiff sustained a serious injury in the accident. We conclude in appeal No. 1 that Supreme Court properly denied defendant's motion "as overly broad," without prejudice "to service of new, proper discovery demands" ( see generally Slate v. State of New York, 267 A.D.2d 839, 841, 699 N.Y.S.2d 824).

In appeal No. 2, defendant appeals from an order denying its subsequent motion seeking to compel plaintiff to produce photographs and an authorization for plaintiff's Facebook account information and granting plaintiff's cross motion for a protective order. Although defendant specified the type of evidence sought, it failed to establish a factual predicate with respect to the relevancy of the evidence ( see Crazytown Furniture v. Brooklyn Union Gas Co., 150 A.D.2d 420, 421, 541 N.Y.S.2d 30). Indeed, defendant essentially sought permission to conduct "a fishing expedition" into plaintiff's Facebook account based on the mere hope of finding relevant evidence ( Auerbach v. Klein, 30 A.D.3d 451, 452, 816 N.Y.S.2d 376). Nevertheless, although we conclude that the court properly denied defendant's motion in appeal No. 2, we agree with defendant that the court erred in granting plaintiff's cross motion for a protective order. Under the circumstances presented here, the court abused its discretion in prohibiting defendant from seeking disclosure of plaintiff's Facebook account at a...