Keelan v. Schubart

192 A.D.2d 511, 596 N.Y.S.2d 90, 1993 N.Y. App. Div. LEXIS 3446

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 5, 1993
• Status: Published

Opinion

—In a negligence action to recover damages for personal injuries, the plaintiffs appeal from (1) an order of the Supreme Court, Nassau County (O’Shaughnessy, J.), dated December 14, 1990, which granted the defendants’ motion for a protective order to vacate the plaintiffs’ notice for discovery and inspection, and (2) an order of the same court, dated January 13, 1993, which denied the plaintiffs’ motion for reargument.

Ordered that the appeal from the order dated January 13, 1993, is dismissed, as no appeal lies from an order denying reargument; and it is further,

Ordered that the order dated December 14, 1990, is reversed, the defendants’ motion for a protective order is denied, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith; and it is further,

Ordered that the appellants are awarded one bill of costs.

The injured plaintiffs sudden discovery that he was under surveillance constituted the type of "unusual or unanticipated circumstance” sufficient to warrant further pretrial proceedings, although he had filed a note of issue and certificate of readiness some four months earlier (see, 22 NYCRR 202.21 [d]; Moon v Sheraton Corp., 110 AD2d 509; see generally, Di Maria v Coordinated Ranches, 114 AD2d 397). The Supreme Court should fashion an appropriate schedule for the disclosure of any surveillance tapes or films in accordance with the decision of the Court of Appeals in DiMichel v South Buffalo Ry. Co. (80 NY2d 184) and the decision of this Court in Kane v Her-Pet Refrig. (181 AD2d 257). Balletta, J. P., Eiber, Ritter and Santucci, JJ., concur.