Court Discusses Plaintiff’s Rights to Discovery

Bligen v Markland Estates, Inc

The plaintiff is the mother of an infant child who allegedly suffered from lead poison during the period that they lived at a premises located in Jamaica, Queens. The defendants were the owner and managers of the property. After the accident, the Department of Health issued a violation to the defendants as a result of the lead poisoning suffered by the child. The defendants then conducted its own testing for lead which indicated that all areas where below the relevant threshold for lead poisoning. A New York Family Lawyer said the mother of the child thereafter initiated a claim against the defendants for the injuries her child sustained. The defendants submitted all the documents regarding the test results to the plaintiff during the course of discovery.

A New York Child Custody Lawyer said the court order was made for the defendants to disclose certain information such as the names and address of its witnesses, the names of all persons who have had lead poisoning while living at the defendants’ address and the various test results done by the laboratory for traces of lead. The defendants complied with of the court order for discovery. The plaintiff then subpoenaed the experts who were employees of the company that conducted the tests for lead to be deposed. The defendants brought a motion to quash the subpoenas seeking to depose experts who had initially took the lead tests. The plaintiff then sought a cross motion to have the defendant’s answer struck out and requested summary judgment on the issue of the defendants’ liability. The plaintiff alleged that the defendants failed to comply with the orders of the court to disclose specific information. The plaintiff stated that they had a right to discovery of all evidence that is relevant to the dispute. The defendants, however, stated that the information being sought is no longer in their control as the property where the alleged injuries took place was no longer in their possession.

A Westchester County Family Lawyer said the Supreme Court held that the plaintiff failed to show special circumstances why the expert witnesses should be required to do a deposition. The mere fact that they performed the initial test for lead was insufficient to depose the witnesses. The plaintiff cross motions were denied as the plaintiff’s arguments about the insufficiency of the responses were without merit it. Additionally, there was no good cause to show why the parties should move to summary judgment especially after the results from the lead tests that was performed after the accident. The plaintiff appealed the decision.

The appellate division of the Supreme Court affirmed the orders of the lower court. However, the court granted the defendants sua sponte, that is, on its own accord, a protective order with respect to certain items of the plaintiffs’ notice of discovery and inspection. A Suffolk County Family Lawyer said the protective order prevents disclosure under special circumstances. The Civil Practice Law and Rule (3103) gives the court power to grant a protective order to prevent abuse. Therefore, the plaintiffs could not use their right to discovery to badger the defendants for information. In normal circumstances, a party is entitled to information that the opposing party controls unless there are special circumstances. The request for summary judgment was properly denied by the Supreme Court as there were material facts and issues for the court to determine.

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