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Winchell v. Lopiccolo

Supreme Court, Orange County

October 19, 2012

Jennifer S. Winchell, Plaintiff,
v.
Channing Lopiccolo and FRANCESCO LOPICCOLO, Defendants.

Attorney for Plaintiff Peter R. Eriksen, Esq. Jacobowitz and Gubits, LLP.

Attorneys for Defendant Betsy N. Garrison, Esq. Robert M. Lefland, Esq. Eisenberg & Krish, Esqs.

Paul I. Marx, J.

The following papers numbered 1 to 6 were read on Defendants' motion pursuant to CPLR §3124 to compel Plaintiff to provide outstanding discovery demanded by Defendants:

Notice of Motion-Affirmation of Betsy N. Garrison, Esq.-Exhibits.. A to F 1-2
Memorandum of Law in Opposition-Affirmation of Peter R. Eriksen, Esq.-Affidavit of Jennifer Winchell-Exhibits A to B 3-5
Reply Affirmation-Exhibit .A 6

Upon the foregoing papers, it is ORDERED that the motion to compel is denied in part and granted in part.

This personal injury action arises out of a motor vehicle accident which occurred in Montgomery, New York on March 13, 2009. Plaintiff alleged in her Bill of Particulars that she suffered various injuries, including physical injury and "mild traumatic brain injury, " "blunt facial and head trauma, " "persistent ecchymosis in the forehead, " "impaired cognitive functioning, " "cerebral dysfunction, " "motor organization deficit, " "memory impairments" and "difficulty concentrating."

Defendants served Plaintiff with a Notice to Produce, demanding the following: (1) a copy of a film in which Plaintiff appeared; (2) a videotape of a beauty pageant in which Plaintiff participated; (3) authorization for access to Plaintiff's Facebook page; (4) photographs of Plaintiff at her junior prom; (5) photographs of Plaintiff at her boyfriend/fiance's senior prom; (6) all reviews that mention Plaintiff as a performer; (7) the Playbill for the production "Brighton Beach Memoirs" in which Plaintiff performed one of the acting roles; (8) the name and address of the director of "Brighton Beach Memoirs"; and (9) authorization for access to Plaintiff's employment records. Plaintiff objected to these demands and the instant motion followed.

In their motion papers, Defendants narrow the scope of their Request Nos. 4 and 5 to only those photographs that are representative of Plaintiff's appearance at the two proms. Defendants withdraw Request No. 9.

In her opposition papers, Plaintiff provides responses to Request Nos. 1, 2, 6, 7, 8, 9, and 10. With regard to Request Nos. 1 and 2, Plaintiff asserts that she does not have possession or control of the film in which she appeared, and she does not believe that a videotape was made of the beauty pageant. With regard to reviews of her performance sought in Request No. 6, Plaintiff states that she is not aware that any exist. Plaintiff attaches a copy of the Playbill for "Brighton Beach Memoirs" in response to Request Nos. 7 and 9 (which was withdrawn). In response to Request No. 8, Plaintiff provides the information that she is able to recall. Finally, with regard to Request No. 10, Plaintiff asserts that she already provided Defendants with the authorization for her employment records.

In their reply papers, Defendants do not address Plaintiff's responses to the above Requests, focusing instead on Request No. 3, which seeks the Facebook authorization. The Court interprets Defendants' lack of specific objection to any of Plaintiff's responses to Request Nos. 1, 2, and 6 through 10 as a further narrowing of the scope of the parties' dispute to only Request No. 3 for the Facebook authorization and Request Nos. 4 ...


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