BY FABIANA v. Henry Itelson Center et al., Defendants. (2022)

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered February 22, 2022, which granted plaintiffs’ motion for a protective order to preclude defendant Jewish Board of Family & Children's Services from taking a videotaped deposition of the infant plaintiff, unanimously affirmed, without costs.

Our discovery rules provide for “full disclosure of all matter material and necessary in the ․ defense of an action” by a party to that action (CPLR 3101[a]), including for recording of depositions (see CPLR 3113[b];  Uniform Rules for Trial Cts [22 NYCRR] § 202.15[a]).  It is well settled, however, that “ ‘competing interests must always be balanced;  the need for discovery must be weighed against any special burden to be borne by the opposing party’ ” (Forman v. Henkin, 30 N.Y.3d 656, 662, 70 N.Y.S.3d 157, 93 N.E.3d 882 [2018], quoting Kavanagh v. Ogden Allied Maintenance Corp., 92 N.Y.2d 952, 954, 683 N.Y.S.2d 156, 705 N.E.2d 1197 [1998]).  Accordingly, Supreme Court is empowered to deny or limit disclosure “to prevent unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts” (CPLR 3103[a];  see Jones v. Maples, 257 A.D.2d 53, 56, 691 N.Y.S.2d 429 [1st Dept. 1999] [“CPLR 3103(a) gives the courts wide discretion to preclude or appropriately limit the use of any particular disclosure device where it determines that the use of that device would cause unreasonable annoyance or embarrassment”]).

Our case law leaves no doubt that “[a] trial court is vested with broad discretion regarding discovery, and its determination will not be disturbed absent a demonstrated abuse of that discretion” (148 Magnolia, LLC v. Merrimack Mut. Fire Ins. Co., 62 A.D.3d 486, 487, 878 N.Y.S.2d 727 [1st Dept. 2009];  see e.g. Mendez v. Equities By Marcy, 24 A.D.3d 138, 138, 805 N.Y.S.2d 57 [1st Dept. 2005] [“the motion court properly exercised its broad discretion to supervise the discovery process”]).  Although we are empowered to substitute our own discretion for that of the trial court, this is “a power we rarely and reluctantly invoke” (Estate of Yaron Ungar v. Palestinian Auth., 44 A.D.3d 176, 179, 841 N.Y.S.2d 61 [1st Dept. 2007]).

Here, the motion court providently exercised its discretion in granting a protective order to preclude defendant from videotaping the infant plaintiff's deposition (see generally Forman, 30 N.Y.3d at 662, 93 N.E.3d 882;  Jones, 257 A.D.2d at 56, 691 N.Y.S.2d 429).  In balancing the competing interests, the court permitted defendant to “include the adjuster or other interested individual to be virtually present at the [p]laintiff's deposition with their microphones muted.”  We clarify that the deposition should be conducted in a manner that the persons observing remotely are not visible to plaintiff.  Contrary to defendant's contention, plaintiffs’ explanation that videotaping the deposition would compound the infant plaintiff's traumatic experience of reliving the alleged sexual assaults committed by defendant's employee satisfied plaintiffs’ burden of demonstrating that a videotaped deposition would be improper (cf.  Jones, 257 A.D.2d at 54, 691 N.Y.S.2d 429;  Sage Realty Corp. v. Proskauer Rose, 251 A.D.2d 35, 40, 675 N.Y.S.2d 14 [1st Dept. 1998];  see CPLR 3103[a]).

We have considered defendant's remaining arguments and find them unavailing.