Opinion
2013-04-11
Milliely NIEVES, an infant over the age of 14, by her parent and natural guardian, Milagros Vasquez, individually, Plaintiffs–Appellants, v. 30 ELLWOOD REALTY LLC, Defendant–Respondent.
Jacoby & Meyers, Newburgh, and Finkelstein & Partners (Marie DuSault of counsel) for appellants. Smith Mazure Director Wilkins Young & Yagerman, P.C., New York City (Stacy I. Malinow of counsel), for respondent.
Jacoby & Meyers, Newburgh, and Finkelstein & Partners (Marie DuSault of counsel) for appellants. Smith Mazure Director Wilkins Young & Yagerman, P.C., New York City (Stacy I. Malinow of counsel), for respondent.
PRESENT: SCHOENFELD, J.P., SHULMAN, HUNTER, JR. JJ.
PER CURIAM.
Order (Arlene P. Bluth, J.), entered March 12, 2012, modified to the extent of directing plaintiff to produce her Facebook records compiled on or after the date of the accident for an in camera review of those records, and thereafter for a de novo determination of defendant's discovery motion; as modified, order affirmed, without costs.
The infant plaintiff claims damages for physical and psychological injuries, including the inability to engage in social activities, anxiety, depression, and posttraumatic stress disorder. Defendant demonstrated that plaintiff's Facebook profile contained photographs that were probative of the issue of the extent of her alleged injuries, and it is reasonable to believe that other portions of her Facebook records may contain further evidence relevant to that issue ( see Patterson v. Turner Constr. Co., 88 A.D.3d 617, 931 N.Y.S.2d 311 [2011];see also Richards v. Hertz Corp., 100 A.D.3d 728, 953 N.Y.S.2d 654 [2012] ). In these circumstances, and since “it is possible that not all Facebook communications are related to the events that gave rise to plaintiff's cause of action” ( Patterson v. Turner Constr. Co., 88 A.D.3d at 618, 931 N.Y.S.2d 311), the appropriate course is to remand the matter for an in camera inspection of plaintiff's Facebook records, to determine which of those records, if any, are relevant to plaintiff's alleged injuries. To the extent that a thorough in camera inspection may prove unduly burdensome, the trial court retains broad discretion to set reasonable terms and conditions thereon ( see generally Downing v. Moskovits, 58 A.D.3d 671, 873 N.Y.S.2d 320 [2009];Gillen v. Utica First Ins. Co., 41 A.D.3d 647, 839 N.Y.S.2d 155 [2007] ), including the right to direct plaintiff to conduct an initial review of her own Facebook account, and limit the in camera inspection to items whose discoverability is contested by plaintiff ( see Offenback v. L.M. Bowman, Inc., 2011 WL 2491371, *3 n. 3, 2011 U.S. Dist. LEXIS 66432, *8, n. 3 [M.D.Pa. 2011] ).