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

Dale POLAKOFF, et al., Plaintiffs–Appellants, v. NYU HOSPITALS CENTER, et al., Defendants–Respondents.


Decided: October 29, 2019

Richter, J.P., Gische, Tom, Gesmer, Moulton, JJ. Herzfeld & Rubin, P.C., New York (Miriam Skolnik of counsel), for appellants. Aaronson Rappaport Feinstein, & Deutsch, LLP, New York (Deirdre E. Tracey of counsel), for respondents.

CPLR 3101(i) provides in relevant part that “there shall be full disclosure of any films, photographs, video tapes or audio tapes” involving a party and its agents or employees. This provision applies “regardless of who created the recording or for what purpose,” and “requires ‘full disclosure,’ without regard to whether the party in possession of the recording intends to use it at trial” (Bermejo v. New York City Health & Hosps. Corp., 135 A.D.3d 116, 146, 21 N.Y.S.3d 78 [2d Dept. 2015] ). Disclosures under CPLR 3101(i) are not subject to a timing limitation and thus should have been made pursuant to the court's discovery orders (see Tai Tran v. New Rochelle Hosp. Med. Ctr., 99 N.Y.2d 383, 389–390, 756 N.Y.S.2d 509, 786 N.E.2d 444 [2003] ).

Here, the motion court did not abuse its discretion in granting defendants' motion to preclude plaintiffs' use of the video and audio recordings pursuant to CPLR 3126. Plaintiffs' failure to produce the audio and video recordings until after their depositions and on the eve of the continuation of defendant Dr. Galloway's deposition demonstrates plaintiffs' willful and contumacious violation of the court's various discovery orders as well as plaintiffs' duty of full disclosure under CPLR 3101(i) (Bermejo at 146–147, 21 N.Y.S.3d 78; compare Fox v. Grand Slam Banquet Hall, 142 A.D.3d 473, 474–475, 36 N.Y.S.3d 653 [1st Dept. 2016]; Colome v. Grand Concourse 2075, 302 A.D.2d 251, 754 N.Y.S.2d 536 [1st Dept. 2003] ). Defendants were clearly prejudiced by plaintiffs' surprise tactic, occurring a year and a half after the date of the preliminary conference order, and after the parties were deposed (compare Liberty Petroleum Realty, LLC v. Gulf Oil, L.P., 164 A.D.3d 401, 408, 84 N.Y.S.3d 82 [1st Dept. 2018]; Law Offs. Of Russell I. Marnell v. Sanabria, 151 A.D.3d 605, 54 N.Y.S.3d 289 [1st Dept. 2017] ).