New York State Supreme Court, Appellate Division, Fourth Judicial Department
Order of Protection – Written notice statute
Appealed from Supreme Court, Niagara County
Background: The plaintiff commenced an action against the defendant city of Niagara Falls following a motor vehicle accident. On appeal, the plaintiff argues that the court abused its discretion by granting the city’s order of protection striking certain discovery demands which pertained to records related to the city’s road maintenance and re-paving, work assignments, and associated budgets.
Ruling: The Appellate Division reversed. The court held that the records are material and necessary to the plaintiff’s pleadings. The court rejected the defendant’s argument that the demands were improper because they sought information related to claims precluded by the city’s written notice statute. The court reasoned that as there has been no determination as a matter of law regarding either the absence of the requisite written notice or the unavailability of a recognized exception to the written notice requirement, the court had erred by granting the protective order on those grounds.
Matthew J. Kaiser, of William Mattar, for the plaintiff-appellant; Joseph H. Emminger, of Walsh, Roberts & Grace, for the defendant-respondent.