Evans v. Roman ( 2019 )

Evans v Roman (2019 NY Slip Op 03693)

Evans v Roman

2019 NY Slip Op 03693

Decided on May 9, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 9, 2019
Friedman, J.P., Renwick, Kapnick, Kahn, Oing, JJ.

9292N 9291

[*1] Crystal Evans, Plaintiff-Appellant,

v

Dr. Henry Roman, M.D., Defendant, Noakita Allen, R.N., et al., Defendants-Respondents.

Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.

Drabkin & Margulies, New York (Robert W. Margulies of counsel), for Noakita Allen, R.N., Split Rock Rehabilitation and Health Care Center, LLC, and Split Rock Multi-Care Center, LLC, respondents.

Egan Law Firm, New York (Susan B. Egan of counsel), for RLD Medical Services, P.C., respondent.

Order, Supreme Court, Bronx County (George J. Silver, J.), entered April 11, 2018, which granted defendants' motion to compel plaintiff to provide cell phone records and produce her cell phone for inspection by defendants, unanimously reversed, on the law and the facts, without costs, and defendants' motion denied. Appeal from order, same court and Justice, entered November 21, 2018, which, in effect, granted plaintiff's motion for reargument and, upon reargument, adhered to the prior determination, unanimously dismissed, without costs, as academic.

The court should not have directed plaintiff to produce her phone and all of the material stored on it because defendants failed to meet the threshold for disclosure by showing that their request for plaintiff's cell phone was reasonably calculated to yield information material and necessary to its defense (see Forman v Henkin, 30 NY3d 656, 664-665 [2018]; AllianceBernstein L.P. v Atha, 100 AD3d 499 [1st Dept 2012]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 9, 2019

CLERK