Montalvo v. CVS Pharmacy, Inc.
| Decision Date | 01 February 2011 |
| Citation | 915 N.Y.S.2d 865,81 A.D.3d 611 |
| Parties | Edward MONTALVO, et al., appellants, v. CVS PHARMACY, INC., respondent, et al., defendants (and a third-party action). |
| Court | New York Supreme Court — Appellate Division |
McAndrew Conboy & Prisco, Woodbury, N.Y. (Yasmin D. Soto of counsel), for respondent.
In an action to recover damages for personal injuries, etc., theplaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Gazzillo, J.), dated March 24, 2010, as denied their motion to compel the defendant CVS Pharmacy, Inc., to permit their attorney and photographer to inspect and photograph the roof of the store where the accident allegedly occurred.
ORDERED that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, and the plaintiffs' motion to compel the defendant CVS Pharmacy, Inc., to permit their attorney and photographer to inspect and photograph the roof of the store where the accident allegedly occurred is granted.
Parties to an action are entitled to reasonable discovery 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 Publ. Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430). CPLR 3101(a), which permits discovery of "all matter material and necessary in the prosecution or defense of an action," has thus been liberally construed to include evidence required for trial preparation as well as matter that may lead to the disclosure of admissible proof ( see Twenty Four Hour Fuel Oil Corp. v. Hunter Ambulance, 226 A.D.2d 175, 175-176, 640 N.Y.S.2d 114; Keenan v. Harbor View Health & Beauty Spa, 205 A.D.2d 589, 613 N.Y.S.2d 419 ; Matter of Southampton Taxpayers Against Reassessment v. Assessor of Vil. of Southampton, 176 A.D.2d 795, 796, 575 N.Y.S.2d 125; Shutt v. Pooley, 43 A.D.2d 59, 349 N.Y.S.2d 839). The plaintiffs demonstrated that an inspection by their attorney of the roof of the CVS store where the accident allegedly occurred would yield evidence that is "material and necessary" to the prosecution of this action (CPLR 3101[a] ). Furthermore, the defendant CVS Pharmacy, Inc., failed to establish that it would be unduly prejudiced or burdened if it were compelled to permit the inspection to take place ( see CPLR 3103[a]; High Point of Hartsdale I Condominium v. AOI Constr., Inc., 31 A.D.3d 711, 712, 818...
To continue reading
Request your trial
-
Mei Xiao Guo v. Quong Big Realty Corp.
...a slip-and-fall case has the initial burden of making a prima facie showing that it did not create the hazardous condition that allegedly81 A.D.3d 611caused the fall, and did not have actual or constructive notice of that condition for a sufficient length of time to discover and remedy it (......
-
McAlwee v. Westchester Health Assocs., PLLC
...v. Crowell–Collier Publ. Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430 ; see 81 N.Y.S.3d 104 Montalvo v. CVS Pharmacy, Inc., 81 A.D.3d 611, 612, 915 N.Y.S.2d 865 ; LaPierre v. Jewish Bd. of Family & Children Servs., Inc., 47 A.D.3d 896, 896, 850 N.Y.S.2d 595 ). "However, the pri......
-
ACG Credit Co. II v. Hearst
...the discovery of material that will sharpen the issues for trial and reduce delay and prolixity ( see Montalvo v. CVS Pharmacy, Inc., 81 A.D.3d 611, 612, 915 N.Y.S.2d 865). Here, the Supreme Court improvidently exercised its discretion in denying Hearst's motion. The substantial discrepancy......
-
Asphalt Maint. Servs. Corp. v. Oneil
...656, 661, 70 N.Y.S.3d 157, 93 N.E.3d 882 ; Cajamarca v. Osatuk, 163 A.D.3d 619, 620, 81 N.Y.S.3d 439 ; Montalvo v. CVS Pharmacy, Inc., 81 A.D.3d 611, 612, 915 N.Y.S.2d 865 ). However, the principle of "full disclosure" does not give a party the right to uncontrolled and unfettered disclosur......