Dani v. 551 W. 21st St. Owner LLC

Dani v 551 W. 21st St. Owner LLC (2020 NY Slip Op 01456) Dani v 551 W. 21st St. Owner LLC 2020 NY Slip Op 01456 Decided on March 3, 2020 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 March 3, 2020 Acosta, P.J., Friedman, Mazzarelli, Webber, JJ. 11197N 155513/16 [*1] Agim Dani, Plaintiff-Respondent, v 551 West 21st Street Owner LLC, et al., Defendants-Appellants. Pillinger Miller Tarallo, LLP, Elmsford (Patrice M. Coleman of counsel), for appellants. Wingate, Russotti, Shapiro & Halperin, LLP, New York (David M. Schwarz of counsel), for respondent. Order, Supreme Court, New York County (Lucy Billings, J.), entered August 28, 2018, which denied defendants' motion to compel production of plaintiff's cell phone records, unanimously affirmed, without costs. The court providently exercised its discretion in denying defendants' motion (see generally Veras Inv. Partners, LLC v Akin Gump Strauss Hauer & Feld LLP, 52 AD3d 370, 373 [1st Dept 2008]). Defendants at this point have failed to satisfy the "threshold requirement" that the request was reasonably calculated to yield information that is "material and necessary" (Forman v Henkin, 30 NY3d 656, 661 [2018] [internal quotation marks omitted]). The affidavits submitted in support of the motion simply stated that plaintiff was holding his cell phone in his hand prior to the trip and fall accident, and that the cell phone was found near his body after the accident. As such, they were too speculative to warrant disclosure of plaintiff's cell phone records (see Gough v Panorama Windows, Ltd., 133 AD3d 526 [1st Dept 2015]). We have considered defendants' remaining contentions and find them unavailing. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: MARCH 3, 2020 CLERK