Wade Clark Mulcahy LLP

In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2022/09/Villani-v.-Rite-Aid-of-N.Y.-Inc..pdf">Villani v. Rite Aid of N.Y., Inc.</a>,</em> Index no. 155613/2022, the Hon. Arlene P. Bluth of New York County Supreme Court has denied a petitioner’s request for a pre-action disclosure of in-store surveillance video from an October 2021 accident. The petitioner claims she suffered severe facial and eye injuries when she collapsed and struck her head in a Rite Aid in Manhattan after fainting from a COVID-19 booster.

The petitioner argued that the surveillance video was material and necessary to frame her complaint because the staff present at the time of her accident may be responsible for her injuries, and the video will assist in identifying the employees that were present at the time. In opposition, respondent argued that the petition presents sufficient facts in framing a complaint, such as the time, date, and location of the incident.

In denying petitioner’s request, Hon. Arlene P. Bluth explained that the purpose of a pre-action disclosure is to assist a potential plaintiff with identifying the specific causes of action that may be asserted or with identifying potential defendants. However, petitioner here demonstrated both. The petitioner knows when the incident happened, where it happened, and the events immediately preceding the incident, and predicts she will pursue a negligence claim. The petitioner’s request for surveillance to identify the employees who were working that day presumes these employees were wearing nametags and the ability to see the names. As such, identification is better suited for a plenary action rather than pre-action disclosure of surveillance.

This case demonstrates that a pre-action discovery for surveillance is not permissible as a “fishing expedition” to determine whether a cause of action exists, unless it is shown the information sought is material and necessary. A petition that already presents the time, date, and location of the accident, including the events immediately preceding the incident, is sufficient to frame a complaint.

Thanks to Gina Rodriguez for her contribution to this article.  Should you have any questions, contact <a href="mailto:mcare@wcmlaw.com">Matthew Care</a>.