SUPREME COURT OF THE STATE OF NEW YORK

 Appellate Division, Fourth Judicial Department

881 

CA 15-02032 

PRESENT: WHALEN, P.J., SMITH, LINDLEY, TROUTMAN, AND SCUDDER, JJ.

 

SANDRA RIVERA, PLAINTIFF-APPELLANT, 

 

V MEMORANDUM AND ORDER

 

ROCHESTER GENERAL HEALTH SYSTEM, DOING BUSINESS 

AS HILL HAVEN REHABILITATION & TRANSITIONAL CARE 

CENTER, DEFENDANT-RESPONDENT. 

 

WILLIAM MATTAR, P.C., WILLIAMSVILLE (JOHN E. ABEEL OF COUNSEL), FOR 

PLAINTIFF-APPELLANT.

OSBORN REED & BURKE, LLP, ROCHESTER (JENNIFER M. SCHWARTZOTT OF COUNSEL), 

FOR DEFENDANT-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Monroe County (Thomas 

A. Stander, J.), entered September 18, 2015. The order granted the motion 

of defendant for a protective order. 

It is hereby ORDERED that the order so appealed from is unanimously 

reversed in the exercise of discretion without costs, the motion is denied, 

and the matter is remitted to Supreme Court, Monroe County, for further 

proceedings in accordance with the following memorandum: Plaintiff 

commenced this action seeking damages for injuries she allegedly sustained 

when she tripped and fell over a wheelchair scale located in a hallway 

of the second floor of a building owned and operated by defendant. 

Plaintiff alleged, inter alia, that defendant was negligent in creating 

and allowing a Atripping hazard to exist in an area regularly traversed 

by staff, residents and other visitors,@ failing to warn of the dangerous 

condition, and A[f]ailing to place the wheelchair scale in an area of 

the facility where it would not create a tripping hazard.@ As part of 

her discovery demands, plaintiff demanded a site inspection and production 

of the floor plans for the entire building. Defendant sought a protective 

order limiting the application of the discovery demands to the floor on 

which the accident occurred. Plaintiff appeals from an order that granted 

defendant=s motion. 

A[W]e have repeatedly recognized that >[a] trial court has broad 

discretion in supervising the discovery process, and its determinations 

will not be disturbed absent an abuse of that discretion= @ (Daniels v 

Rumsey, 111 AD3d 1408, 1409). AWe have also repeatedly noted, however, 

that, where discretionary determinations concerning discovery and CPLR 

article 31 are at issue, [we] [are] vested with the same power and 

discretion as [Supreme Court, and thus we] may also substitute [our] own 

discretion even in the absence of abuse@ (id. [internal quotation marks 
-2- 881 

CA 15-02032 

omitted]). Under the circumstances of this case, we substitute our own 

discretion for that of the motion court, and we conclude that the items 

of discovery requested by plaintiff are Amaterial and necessary@ to the 

prosecution of the action (CPLR 3101 [a]).

Inasmuch as the site inspection, including any photographing and 

recording that may capture the residents of the building, may impact 

defendant=s proprietary rights and the privacy rights of the residents, 

and in order to implement plaintiff=s offers to limit the use of her 

discovery requests, we remit the matter to Supreme Court for consideration 

of reasonable restrictions to be placed on the discovery items requested 

(see generally Suchorzepka v Mukhtarzad, 103 AD3d 878, 879-880).

Entered: November 10, 2016 Frances E. Cafarell

Clerk of the Court