Cleary v. City of New York

177 A.D.2d 283, 576 N.Y.S.2d 17, 1991 N.Y. App. Div. LEXIS 14202

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 7, 1991
• Status: Published

Opinion

Order, Supreme Court, New York County (Robert White, J.), entered July 5, 1991, which, inter alia, granted plaintiffs’ application for an order compelling discovery of surveillance videotapes, unanimously affirmed, without costs.

Third-party defendant Hallen Construction Co. argues the court erred in granting the plaintiffs’ request for disclosure of surveillance videotapes on the eve of trial, one year after the filing of the nóte of issue, without any showing by plaintiffs of special, unusual or exceptional circumstances, and where no excuse was offered for plaintiffs’ delay in making the additional discovery demand. To the contrary, inasmuch as plaintiffs, prior to filing their note of issue, obtained a court order directing defendants’ disclosure of any party statements or photographs, and in view of the fact that non-disclosure of surveillance videotapes in defendants’ possession would place plaintiffs at hardship to duplicate the films and/or to authenticate the films, special circumstances exist warranting the IAS court’s exercising its discretion to grant plaintiffs’ motion to compel disclosure of the surveillance videotapes. (See generally, Marte v Hickok Mfg. Co., 154 AD2d 173.) Concur—Ellerin, J. P., Wallach, Kupferman and Ross, JJ.