Summary
This New York Appellate Division decision addresses a plaintiff's appeal from a trial court order denying her application to compel the defendant's full responses to a post-examination before trial discovery demand. The appellate court granted leave to appeal on its own motion and affirmed the lower court's ruling, holding that the plaintiff improperly raised the application for the first time in her reply papers without providing a surreply. The court concluded that the remaining contentions were not properly before it.
Topics
Practice areas
Questions Presented
- Whether the Supreme Court, Kings County properly denied the plaintiff's application to compel full responses to the post‑examination before trial demand.
Holdings
- The appellate division affirmed the order denying the application because the application was improperly made for the first time in reply papers and no sur‑reply was filed.
Key quotations
“Under the circumstances, the Supreme Court properly denied the plaintiff's application, in effect, to compel the defendant to provide full responses to the plaintiff's post‑EBT demand for discovery and inspection.”
Factual background
Lilis Smith sued the New York City Transit Authority for personal injuries. After serving a post‑examination before trial demand in May 2023, the defendant provided a response that the plaintiff deemed inadequate. The plaintiff moved to extend the time to file a note of issue and later applied to compel full responses to the EBT demand. The trial court denied the application, holding the demands were irrelevant, overbroad, and unduly burdensome.
Procedural history
The plaintiff filed a personal‑injury action in 2011. In May 2023 she served a post‑examination before trial (EBT) demand. The defendant responded and the plaintiff moved to extend time to file a note of issue. The Supreme Court, Kings County, denied the plaintiff's application to compel full responses, finding the demands irrelevant, overbroad, and unduly burdensome. The appellant appealed that order.