The following papers numbered 1 to 11 read on this motion

Defendants, THE CITY OF NEW YORK, NEW YORK CITY SCHOOL CONSTRUCTION AUTHORITY, SILVERITE CONSTRUCTION COMPANY and SILVERITE CONTRACTING CORPORATION (hereinafter collectively referred to as "CITY") move, pursuant to CPLR §3126, to compel the plaintiff to provide authorizations to obtain records from plaintiff's social media accounts. Plaintiff cross moves for an Order compelling the defendants to provide outstanding discovery.

This action arises from an accident on July 8, 2013 wherein the plaintiff alleges he injured his left knee while acting within the course of his employment. Plaintiff further alleges that a result of said accident and alleged injuries, he has been substantially prevented from "enjoying the normal fruits of activities" and his enjoyment of life is permanently impaired, impeded and/or destroyed.

Plaintiff was deposed on November 30, 2014. During said deposition, plaintiff testified that he posted only one photograph of his knee on his Facebook account. When questioned if he posted any written works or any comments about the accident or his injuries, plaintiff testified that he did not.

In opposition, plaintiff argues that discovery of his social media accounts is not proper in that defendants have failed to establish that there is relevant information in his Facebook and other social media accounts, or information that conflicts or contradicts plaintiff's alleged disabilities and claims. Plaintiff testified he may have posted one photograph of his knee, but this only corroborates his claim that his left knee was injured.

In reply, defendants attached the results of an internet search which indicates that plaintiff has social media accounts with Facebook, Twitter and Instagram under the name "Kepstar". Defendants attached several printouts which reveals that plaintiff made several comments regarding the accident, how the accident happened, his injuries, his recovery, and his activities post accident. Defendants further claim that said internet search revealed that plaintiff posted multiple photographs of his injuries on his social medical accounts. This information clearly contradicts plaintiff's testimony, and accordingly defendants argue that they have established a "factual predicate" that warrants discovery of plaintiff's social medial accounts.

Courts have held that to warrant discovery of private social media accounts, the defendant must establish a factual predicate for said request by identifying relevant information in plaintiff's [social media] account, such as information that contradicts or conflicts with plaintiff's alleged [*2]restrictions, disabilities, losses, and other claims (see Tapp v. New York State Urban Dev. Corp., 102 AD3d 620; Patterson v. Turner Constr. Co., 88 AD3d 617). The Patterson court went on to hold, "plaintiff's mere possession and utilization of a Facebook account is an insufficient basis" to compel access to the account (Id. at 620) The Second Department, in Richards v. Hertz Corp., 100 AD3d 728, ordered an in camera inspection of all status reports, e-mails, photographs, and videos posted on plaintiff's Facebook profile where defendants presented material on plaintiff's public page which contradicted her deposition testimony. However, the Court noted "absent some facts that the person disclosed some information about the subject matter of the pending law suit, granting carte blanche discovery of every litigant's social media records is tantamount to a costly, time consuming fishing expedition" (see Fawcett v. Altieri, 38 Misc 3d 1022; see also Pereira v. City of New York, 975 NYS2D 711).

Defendants have demonstrated that the plaintiff has posted photographs and comments concerning the how the accident happened and the extent of his injuries. Accordingly, defendants established that discovery of plaintiff's social media account will lead, or may reasonably be calculated to lead, to relevant evidence bearing on plaintiffs claims (see Richards v. Hertz Corp., supra).

The Court have recognized, however, that a persons Facebook profile or other social media accounts, may contain material of a private nature that is not relevant, the Supreme Court should conduct an in camera inspection of all status reports, e-mails, photographs, and videos posted on the plaintiff's social media accounts since the date of the accident to determine which of those materials, if any, are relevant to the alleged claim and injuries (see Patterson v. Turner Constr. Co., supra).

Defendants' motion is granted to the extent that the Court shall conduct an in camera inspection of copies of all status reports, e-mails, photographs, and videos posted on plaintiff's social media site since the date of the subject accident to determine which of those materials, if any, are relevant to plaintiff's claims and injuries on June 15, 2015.

With respect to plaintiff's cross motion seeking to compel the defendants to provide outstanding discovery, plaintiff claims that defendants provided two partial responses, both of which were improper and incomplete. Specifically, plaintiff alleges that defendants have failed to respond to numbers 1, 2, 3, and 7 of Plaintiff's Notice for Discovery and Inspection dated November 13, 2014. Defendants have submitted copies of their responses to the alleged outstanding demands. Accordingly, the cross motion is rendered moot.

May 4, 2015___________________________________

Phyllis Orlikoff Flug, J.S.C.