RONALD KIMBALL JR PLAINTIFF APPELLANT v. LAWRENCE NORMANDEAU JR ET AL DEFENDANTS RONALD MATTESON AND DONNA MATTESON DEFENDANTS RESPONDENTS

Reset A A Font size: Print

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

RONALD KIMBALL, JR., PLAINTIFF–APPELLANT, v. LAWRENCE E. NORMANDEAU, JR., ET AL., DEFENDANTS, RONALD MATTESON AND DONNA MATTESON, DEFENDANTS–RESPONDENTS.

CA 10–02309

Decided: April 29, 2011

PRESENT:  SMITH, J.P., CENTRA, PERADOTTO, GORSKI, AND MARTOCHE, JJ. ATHARI & ASSOCIATES, LLC, UTICA (MO ATHARI OF COUNSEL), FOR PLAINTIFF–APPELLANT. BOND, SCHOENECK & KING, PLLC, SYRACUSE (RICHARD L. WEBER OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  In this action to recover damages for personal injuries allegedly arising from exposure to lead paint, plaintiff appeals from an order that, inter alia, granted the motion of Ronald Matteson and Donna Matteson (defendants) to the extent that it sought leave to serve certain interrogatories and to depose plaintiff.   Contrary to plaintiff's contention, Supreme Court properly directed him to submit to both discovery devices.   Although CPLR 3130 permits a party to serve written interrogatories upon any other party without leave of court, CPLR 3130(1) provides in relevant part that, “[i]n the case of an action to recover damages for personal injury ․ predicated solely on a cause or causes of action for negligence, a party shall not be permitted to serve interrogatories on and conduct a deposition of the same party pursuant to rule 3107 without leave of court.”   Pursuant to “the clear and unambiguous language of CPLR 3130(1), leave of court [to serve interrogatories and to depose plaintiff] was not required in this instance [because] the action is not solely predicated upon negligence” (LaJoy v. State, 48 AD3d 1022, 1023).   Rather, the complaint alleges, inter alia, that defendants breached the warranty of habitability within the meaning of Real Property Law § 235–b, thus placing this action outside the ambit of CPLR 3130.   Indeed, we note that plaintiff repeatedly states in his brief on appeal that defendants breached their “contractual and statutory” duty to provide lead-free housing, thereby further establishing that this action is not encompassed by CPLR 3130 because it is not based solely upon negligence (see Friedler v. Palyompis, 24 AD3d 501;  Charlotte Lake Riv. Assoc. v. American Ins. Co., 68 A.D.2d 151).

Furthermore, even assuming, arguendo, that this action is predicated solely upon negligence, we conclude that plaintiff failed to establish that the court abused its discretion in granting defendants leave both to serve interrogatories and to depose plaintiff.   In opposing the motion, plaintiff failed to establish that the requests for information are unduly burdensome, or that they may cause “unreasonable annoyance, expense, embarrassment, disadvantage, or other prejudice to any person or the courts” (CPLR 3103 [a];  see Kooper v. Kooper, 74 AD3d 6, 10).

Patricia L. Morgan

Clerk of the Court