SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

473 

CA 10-02309 

PRESENT: SMITH, J.P., CENTRA, PERADOTTO, GORSKI, AND MARTOCHE, JJ. 

 

RONALD KIMBALL, JR., PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

LAWRENCE E. NORMANDEAU, JR., ET AL., DEFENDANTS,

RONALD MATTESON AND DONNA MATTESON, 

DEFENDANTS-RESPONDENTS. 

ATHARI & ASSOCIATES, LLC, UTICA (MO ATHARI OF COUNSEL), FOR

PLAINTIFF-APPELLANT. 

BOND, SCHOENECK & KING, PLLC, SYRACUSE (RICHARD L. WEBER OF COUNSEL),

FOR DEFENDANTS-RESPONDENTS. 

 

Appeal from an order of the Supreme Court, Oswego County (James

W. McCarthy, J.), entered September 22, 2010 in a personal injury

action. The order granted in part the motion of defendants Ronald

Matteson and Donna Matteson for leave to serve interrogatories on and

to depose plaintiff. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: In this action to recover damages for personal

injuries allegedly arising from exposure to lead paint, plaintiff

appeals from an order that, inter alia, granted the motion of Ronald

Matteson and Donna Matteson (defendants) to the extent that it sought

leave to serve certain interrogatories and to depose plaintiff. 

Contrary to plaintiff’s contention, Supreme Court properly directed

him to submit to both discovery devices. Although CPLR 3130 permits a

party to serve written interrogatories upon any other party without

leave of court, CPLR 3130 (1) provides in relevant part that, “[i]n

the case of an action to recover damages for personal injury . . .

predicated solely on a cause or causes of action for negligence, a

party shall not be permitted to serve interrogatories on and conduct a

deposition of the same party pursuant to rule 3107 without leave of

court.” Pursuant to “the clear and unambiguous language of CPLR 3130

(1), leave of court [to serve interrogatories and to depose plaintiff]

was not required in this instance [because] the action is not solely

predicated upon negligence” (LaJoy v State, 48 AD3d 1022, 1023). 

Rather, the complaint alleges, inter alia, that defendants breached

the warranty of habitability within the meaning of Real Property Law §

235-b, thus placing this action outside the ambit of CPLR 3130. 

Indeed, we note that plaintiff repeatedly states in his brief on
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CA 10-02309 

appeal that defendants breached their “contractual and statutory” duty

to provide lead-free housing, thereby further establishing that this

action is not encompassed by CPLR 3130 because it is not based solely

upon negligence (see Friedler v Palyompis, 24 AD3d 501; Charlotte Lake

Riv. Assoc. v American Ins. Co., 68 AD2d 151).

Furthermore, even assuming, arguendo, that this action is

predicated solely upon negligence, we conclude that plaintiff failed

to establish that the court abused its discretion in granting

defendants leave both to serve interrogatories and to depose

plaintiff. In opposing the motion, plaintiff failed to establish that

the requests for information are unduly burdensome, or that they may

cause “unreasonable annoyance, expense, embarrassment, disadvantage,

or other prejudice to any person or the courts” (CPLR 3103 [a]; see

Kooper v Kooper, 74 AD3d 6, 10). 

Entered: April 29, 2011 Patricia L. Morgan

Clerk of the Court