DANIELS v. FAIRFIELD PRESIDENTIAL MANAGEMENT CORP (2007)

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Kurtz, J.), dated June 23, 2006, as denied those branches of their motion which were to compel the plaintiff to answer certain questions propounded at an examination before trial and, in effect, to vacate so much of a compliance conference order dated January 19, 2006, as directed them to provide the plaintiff with all documents of similar incidents at their premises for the three-year period prior to the accident that is the subject of the action.

ORDERED that the appeal from so much of the order as denied that branch of the defendants' motion which was to compel the plaintiff to answer certain questions propounded at an examination before trial is dismissed;  and it is further,

ORDERED that the order is reversed insofar as reviewed, on the law and in the exercise of discretion, and that branch of the defendants' motion which was, in effect, to vacate the provision of the compliance conference order dated January 19, 2006, directing the defendants to provide the plaintiff with all documents of similar incidents at the defendants' premises for the three-year period prior to the accident is granted, and that provision of the compliance conference order is vacated;  and it is further,

ORDERED that one bill of costs is awarded to the defendants.

The portion of the order appealed from which denied that branch of the defendants' motion which was to compel the plaintiff to answer certain questions propounded at an examination before trial, in effect, determines an application to review objections raised at an examination before trial and is not appealable as of right (see Werner v. Icon Health & Fitness, Inc., 12 A.D.3d 593, 784 N.Y.S.2d 369;  Robinson v. Pediatric Assoc. of Irwin Ave., 307 A.D.2d 1029, 763 N.Y.S.2d 759;  Chevannes v. Lexington Garden Assoc., 259 A.D.2d 654, 685 N.Y.S.2d 631).   The defendants have not sought leave to appeal and there is nothing in the record that would warrant granting leave to appeal on the court's own motion (see Nappi v. North Shore Univ. Hosp., 31 A.D.3d 509, 511, 819 N.Y.S.2d 71;  Doe v. East Ramapo Cent. School Dist., 260 A.D.2d 343, 687 N.Y.S.2d 665;  King v. Salvation Army, 240 A.D.2d 473, 658 N.Y.S.2d 437).

 The Supreme Court improvidently exercised its discretion in denying that branch of the defendants' motion which was, in effect, to vacate so much of a compliance conference order dated January 19, 2006, as directed them to provide the plaintiff with all documents of similar incidents at their premises for the three-year period prior to the accident.   The court's directive was overly broad (see Matter of Rosenberg v. Brooklyn Union Gas Co., 80 A.D.2d 834, 436 N.Y.S.2d 339). In addition, the documents were not material or necessary to the prosecution of the action (see CPLR 3101[a], 3120[1] ).   Discovery of evidence of prior similar accidents, while material in cases where a defect is alleged in the design or creation of a product or structure, is irrelevant and inappropriate in cases such as this, where no inherent defect is alleged (see Desson v. Trustees of Net Realty Holding Trust, 229 A.D.2d 512, 646 N.Y.S.2d 31;  Yoon v. F.W. Woolworth Co., 202 A.D.2d 575, 576, 609 N.Y.S.2d 260;  Berman v. Huntington Hosp., 201 A.D.2d 691, 608 N.Y.S.2d 281;  Kolody v. Supermarkets Gen. Corp., 163 A.D.2d 276, 277, 557 N.Y.S.2d 145).   Since the plaintiff did not allege any design defect, these documents were irrelevant to prove that the snow and ice upon which she slipped and fell was a dangerous condition or that the defendants had notice of that condition.