Life after Perl v. Meher, 18 N.Y.3d 208, 960 N.E.2d 424 (2011) was supposed to have bright lines and boundaries. In PERL, the Court of Appeals stated the obvious, "No-fault abuse still abounds today. In 2010, no-fault accounted for 53% of all fraud reports received by the Insurance Department (Annual Report to the Governor and the Legislature of the State of New York on the Operations of the Insurance Frauds Prevention Act at 23). 'Serious injury' claims are still a source of significant abuse, and it is still true, as it was in 2005, that many courts, including ours, approach claims that soft-tissue injuries are 'serious' with a 'well-deserved skepticism' (Pommells, 4 N.Y.3d at 571, 797 N.Y.S.2d 380, 830 N.E.2d 278)."

The pendulum swung back in favor of the plaintiffs by the Court's pronouncement that, "We agree with the Appellate Division dissenters in Perl that a rule requiring 'contemporaneous' numerical measurements of range of motion could have perverse results. Potential plaintiffs should not be penalized for failing to seek out, immediately after being injured, a doctor who knows how to create the right kind of record for litigation. A case should not be lost because the doctor who cared for the patient initially was primarily, or only, concerned with treating the injuries. We, therefore, reject a rule that would make contemporaneous quantitative measurements a prerequisite to recovery."

How is this Court of Appeals ruling applied in the four Appellate Divisions of the Supreme Court today? Clearly the Plaintiff's with questionable threshold injuries are routinely winning cases on appeal based on the relaxed standard in PERL. Consider the four cases below decided within the last 60 days.

The First Department, in Jallow v. Siri, No. 156160/12, 2015 WL 6970461 (N.Y. App. Div. Nov. 12, 2015) stated, "We note that where a plaintiff has raised a triable issue of fact as to whether certain injuries constitute 'serious injury' under the statute, he is also entitled to seek damages for other injuries caused by the accident that might not otherwise satisfy the statutory threshold. (see Pantojas v. Lajara Auto Corp., 117 A.D.3d 577, 986 N.Y.S.2d 87 [1st Dept 2014]; Caines, 105 A.D.3d at 404, 963 N.Y.S.2d 17). "Plaintiff, a 24-year-old male, had no history of injury to the knee or back prior to the accident on May 2, 2012. A July 25, 2012 MRI of plaintiff's spine revealed a herniation at the level of L5-S1. A July 2, 2012 MRI of plaintiff's knee revealed a 'tear of the undersurface of the posterior horn of the medial meniscus, a high grade partial tear of the anterior cruciate ligament and partial tears of the ... lateral collateral ligaments.' Plaintiff underwent arthroscopic surgery four months after the accident to repair the medial meniscal tear. (see Malloy, 79 A.D.3d at 584-585, 913 N.Y.S.2d 95). Plaintiff's treating physiatrist and expert, Dr. Goldenberg, and his expert orthopedic surgeon, Dr. McMahon, opined that Plaintiff's injuries were traumatically induced as a result of the accident, directly controverting defendants' experts' opinions that plaintiff's injuries were degenerative in origin and/or resolved."

The Second Department in Alberto J. Rivera, appellant, et al., plaintiff, v. Dequan L. Sloane, et al., respondents., No. 2015-02025 (INDEX NO, 2015 WL 7475497 (N.Y. App. Div. Nov. 25, 2015), sets forth no reason for reversal of the lower Court, merely stating, "Rivera raised a triable issue of fact as to whether he sustained a serious injury to the lumbar region of his spine. (see Perl v. Meher, 18 NY3d 208, 218-219). Since Rivera raised a triable issue of fact with respect to the injury to the lumbar region of his spine, it is not necessary to determine whether the evidence he submitted raised a triable issue of fact as to whether his other alleged injuries meet the 'no fault' threshold. (see Linton v. Nawaz, 14 NY3d 821, 822; Rivera v. Ramos, 132 AD3d 655)."

The Third Department, in Solomatin v. Fisher, No. 150233/11, 2015 WL 6971411 (N.Y. App. Div. Nov. 12, 2015), also adhered to the same approach, without discussing rationale, merely stating, "The defendants failed to meet their prima facie burden of demonstrating that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197; Gaddy v. Eyler, 79 N.Y.2d 955, 955-956, 582 N.Y.S.2d 990, 591 N.E.2d 1176). The defendants' motion papers failed to adequately address the plaintiff's claim, set forth in the Bill of Particulars, that she sustained a medically determined injury or impairment of a non-permanent nature which prevented her from performing substantially all of the material acts which constituted her usual and customary daily activities for not less than 90 days during the 180 days immediately following the subject accident. (see Che Hong Kim v. Kossoff, 90 A.D.3d 969, 934 N.Y.S.2d 867; cf. Calucci v. Baker, 299 A.D.2d 897, 750 N.Y.S.2d 675). In light of the defendants' failure to meet their prima facie burden, it is unnecessary to determine whether the papers submitted by the plaintiff in opposition were sufficient to raise a triable issue of fact. (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642)."

The Fourth Department, in Clark v. Boorman, 132 A.D.3d 1323, 17 N.Y.S.3d 255 (N.Y. App. Div. 2015) stated, "It is well established that proof of a herniated disc, without additional objective evidence, is not sufficient to establish a serious injury (see Pommells v. Perez, 4 N.Y.3d 566, 574, 797 N.Y.S.2d 380, 830 N.E.2d 278). Plaintiff also submitted, however, the certified records of his treating chiropractor, as well as the report of the physician who conducted an Independent Medical Examination (IME) for defendant two years later, and those documents quantify significant limitations in the range of motion in plaintiff's cervical and lumbar spine. Plaintiff therefore established, the 'extent or degree of the limitation ... [and] its duration.' (Lively v. Fernandez, 85 A.D.3d 981, 982, 925 N.Y.S.2d 650; see Gates v. Longden, 120 A.D.3d 980, 981-982, 991 N.Y.S.2d 229; see generally Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 350, 746 N.Y.S.2d 865, 774 N.E.2d 1197). Defendant failed to raise an issue of fact sufficient to defeat the motion with the conclusory opinion of the IME physician that the MRI studies were 'unremarkable'."

Using N.Y. C.P.L.R. § 3101 (h) For The Defense: CPLR § 3101(h), effective January 1, 1994, was modeled after rule 26(e) of the Federal Rules of Civil Procedure which explicitly requires that a party, under certain circumstances, promptly supplement or amend responses to disclosure requests.

N.Y. C.P.L.R. § 3101 (h), states:
Amendment or supplementation of responses. A party shall amend or supplement a response previously given to a request for disclosure promptly upon the party's thereafter obtaining information that the response was incorrect or incomplete when made, or that the response, though correct and complete when made, no longer is correct and complete, and the circumstances are such that a failure to amend or supplement the response would be materially misleading. Where a party obtains such information an insufficient period of time before the commencement of trial appropriately to amend or supplement the response, the party shall not thereupon be precluded from introducing evidence at the trial solely on grounds of non-compliance with this subdivision. In that instance, upon motion of any party, made before or at trial, or on its own initiative, the court may make whatever order may be just. Further amendment or supplementation may be obtained by court order. CPLR § 3101(h) requires that a party amend/supplement its response to a request for disclosure promptly upon obtaining information that the response was incorrect or incomplete when made, or that the response, though correct and complete when made, is no longer correct and complete, and that the circumstances are such that a failure to amend or supplement the response would be materially misleading.

How can defense counsel use this statute to their advantage?

Although CPLR § 3101(h) does not specifically provide for motion practice, where one party knows that the opposing side has information but has not supplied it, the party seeking the information may move the court to force an amendment or supplementary response. Green v. S.I. Univ. Hospital., 161 Misc.2d 976, 615 N.Y.S.2d 856, affd. 221 A.D.2d 416, 634 N.Y.S.2d 386 (2nd Dept.1995). Accordingly, defendant need not serve a new demand. Dehaney v. New York City Transit Auth., 180 Misc. 2d 695, 699, 694 N.Y.S.2d 831, 834 (Civ. Ct. 1997).

Consider the plaintiff who serves post Note of Issue supplemental claims of additional injuries, continuing treatment and further economic loss allegations, based on medical records and reports, which pre-dated the Note of Issue filing. An appropriate motion under CPLR § 3101(h) can level the playing field. Consider the fate of the defendants in the annexed Appellate Division decision, Arpino v. F.J.F. & Sons Elec. Co., 102 A.D.3d 201, 959 N.Y.S.2d 74 (2012).

What is the obligation of an insured to pay interest on a judgment which exceeds their policy? Can a carrier be forced to pay more than their policy limits based on the mandatory provisions regarding the payment of interest found in Insurance Department regulation11 NYCRR 60-1.1?

See Friedman v. Progressive Direct Ins. Co., 100 A.D.3d 591, 592, 953 N.Y.S.2d 293, 294-95 (2012) from the Appellate Division Second Department in a case where the Progressive Insured defaulted in the underlying action and Progressive tendered its minimum policy. "Contrary to the defendant's contention, it was required to pay interest on the $25,000 which accrued since the entry of the underlying judgment (see Dingle v. Prudential Prop. & Cas. Ins. Co., 85 N.Y.2d 657, 660, 628 N.Y.S.2d 15, 651 N.E.2d 883; Shnarch v. Empire Mut. Ins. Co., 144 A.D.2d 795, 796, 535 N.Y.S.2d 180 11 NYCRR 60-1.1[b]). Further, since the evidence indicated that the defendant had notice of the underlying action, and an opportunity to defend its insured, the defendant cannot claim that it was absolved from paying interest because it had no opportunity to defend (cf. Alejandro v. Liberty Mut. Ins. Co., 84 A.D.3d 1132, 1133, 924 N.Y.S.2d 124)."

What happens when the defendant posts a bond for the amount of their policy? This question is answered by New York's Civil Practice Law and Procedure statute.

New York CPLR § 5519 (7) (b) provides in part:

(b) Stay in action defended by insurer. If an appeal is taken from a judgment or order entered against an insured in an action which is defended by an insurance corporation, or other insurer, on behalf of the insured under a policy of insurance the limit of liability of which is less than the amount of said judgment or order, all proceedings to enforce the judgment or order to the extent of the policy coverage shall be stayed pending the appeal, and no action shall be commenced or maintained against the insurer for payment under the policy pending the appeal, where the insurer:

1. files with the clerk of the court in which the judgment or order was entered a sworn statement of one of its officers, describing the nature of the policy and the amount of coverage together with a written undertaking that if the judgment or order appealed from, or any part of it, is affirmed, or the appeal is dismissed, the insurer shall pay the amount directed to be paid by the judgment or order, or the part of it as to which the judgment or order is affirmed, to the extent of the limit of liability in the policy, plus interest and costs;

2. serves a copy of such sworn statement and undertaking upon the judgment creditor or his attorney; and

3. delivers or mails to the insured at the latest address of the insured appearing upon the records of the insurer, written notice that the enforcement of such judgment or order, to the extent that the amount it directs to be paid exceeds the limit of liability in the policy, is not stayed in respect to the insured. A stay of enforcement of the balance of the amount of the judgment or order may be imposed by giving an undertaking, as provided in paragraph two of subdivision (a), in an amount equal to that balance.

Subdivision (b) governs a stay of enforcement in a tort action defended by the defendant-tortfeasor's liability insurer and won by the plaintiff at trial level. It applies when the judgment exceeds the amount of the policy. An insurer invoking subdivision (b) waives any defenses it might have had against its insured on the policy.

See Lancer Ins. Co. v. Sunrise Removal Inc., 2010 WL 532387 (Sup.Ct., Nassau County; Jan. 22, 2010), modified and affirmed in 78 A.D.3d 1128, 914 N.Y.S.2d 174 (2d Dep't, Nov. 30, 2010). Lancer involved a personal injury action. Defendant's insurance policy with its insurer was for $100,000. Defendant offered it all but it was rejected, and the trial then produced a verdict and judgment of some $776,000. Lancer holds that if the $100,000 had been unconditionally tendered, it would apparently have sufficed to relieve the insurer of interest on the judgment, but the court held that an outright tender was not made here, just a mere "offer of settlement", and that, holds the court, is insufficient. The result is that the insurer is liable not only for its policy limit of $100,000, but also for interest on the entire judgment covering the period until the $100,000 coverage is paid.

The Court, in Lancer (supra), found the terms of the insurance policy "more generous" than the law requires. Insurance Department Regulation 11 NYCRR 60-1.1(b), requires the insurer to pay interest, however, the insurer is not required to pay on the whole of the judgment. The policy involved in Lancer speaks of interest "on the full amount of any judgment", which resulted in the decision described above.

With regard to the whether the insurer's offer to settle did or did not constitute a "tender," the court in Lancer elaborates by explaining that:

"[a]n offer to settle pursuant to the policy limits is not an unconditional tender of payment and is insufficient to stop the accrual of interest on the judgment. So there is yet another lesson for insurers. If the insured faces great liability because of the injuries inflicted by it on the injured person and the insurer is prepared to throw in the whole policy, the insurer should throw it in with an unequivocal tender of the face amount of the policy."

The court cites several cases to similar effect. One worth noting from the Appellate Division is Levit v. Allstate Ins. Co., 308 A.D.2d 475 (2d Dep't, 2003) in which Allstate's payment of $750,000.00, which was in excess of its $500,000.00 policy limit, was not sufficient to satisfy Allstate's entire obligation after an excess verdict of $6,436,052.80. The Court held further that Allstate's offers to settle the action was not unconditional, and consequently did not satisfy the definition of tender required by the insurance regulation (citied cases omitted). However, Allstate's placement of $750,000.00 in escrow subsequent to the entry of judgment satisfied the definition of payment within the meaning of the policy (Id. 477).

The Common Law Right to Rescind a Policy

Unlike New York, Pennsylvania law gives an insurer a common law right to retroactively rescind an automobile insurance policy (see Klopp v. Keystone Ins. Cos., 528 Pa. 1, 595 A.2d 1 [1991] ) as to an insured who has made a misrepresentation material to the acceptance of risk by the insurer. The carrier may exercise that right within 60 days of the issuance of the policy, without resort to the terms and conditions of the more restrictive statute governing the cancellation of automobile insurance policies (see Erie Ins. Exch. v. Lake, 543 Pa. at 375, 671 A.2d at 687).

Delta Diagnostic Radiology, P.C. v. Infinity Group., (2015 WL 5192836) was issued by the Appellate Term, Second Department on September 2, 2015. The lower court denied summary judgment to the insurance carrier in a no fault dispute. The proof submitted indicated the policy was properly cancelled in Pennsylvania, as the insured made a material misrepresentation to the carrier as to his residency on the policy application. Retroactive rescission of an automobile policy is not available in New York as a remedy despite a misrepresentation in the application for insurance. (see, Vehicle and Traffic Law
§ 313; see also, Matter of Insurance Co. of North America v. Kaplun, 274 AD2d 293 [2nd Dept. 2000]; Olivio v. Government Employees Insurance Co. of Washington, D.C., 46 AD2d 437 [2nd Dept. 1975]).

In support of the motion for summary judgment in the lower court, the defendant argued that, under a "grouping of contacts" analysis (see Matter of Eagle Ins. Co. v. Singletary, 279 A.D.2d 56, 717 N.Y.S.2d 351 [2000] ), Pennsylvania law should be applied, since that state had the most significant contacts with the parties and the contract. Under Pennsylvania law, an insurer is permitted to retroactively rescind an automobile insurance policy based upon material misrepresentations made by the named insured in the application for the policy (see Erie Ins. Exch. v. Lake, 543 Pa. 363, 671 A.2d 681 [1996] ). Defendant also argued that it had issued a letter to the insured rescinding the policy ab initio, and, since defendant had refunded the insured's premiums, there was no coverage available for the claim submitted by plaintiff.

The Appellate Term reversed, holding, "Defendant, in its motion papers, demonstrated that the policy was effective commencing on May 20, 2008, that the letter notifying the insured of the policy's rescission had been mailed to the insured on July 10, 2008, and that the check returning the insured's premiums had been mailed on July 18, 2008. Thus, defendant demonstrated, prima facie, that it had validly rescinded the policy in accordance with Pennsylvania law by showing that, within 60 days of issuance of the policy, it had provided the insured with "a written statement of the reason for cancellation" (40 P.S. § 991.2002[c][3]) and that it had returned to the insured the premiums he had paid (see Klopp v. Keystone Ins. Cos., 528 Pa. 1, 595 A.2d 1). In opposition to defendant's showing, plaintiff failed to raise a triable issue of fact as to the validity of the retroactive rescission of the policy in accordance with Pennsylvania law." Delta Diagnostic Radiology, P.C. v. Infinity Grp., No. 2013-2147KC, (N.Y. App. Term. Sept. 2, 2015).

Seldom does a no-fault case, initiated in the Civil Court, wind its way to the Appellate Division. Further rare, are those occasions when a vigorous dissent can chart a course to the Court of Appeals. American Transit Ins. Co. v. Longevity Med. Supply, Inc., 2015 NY Slip Op 06761 (N.Y. App. Div. Sept. 15, 2015) is the case that may find its way to the high court if the carrier continues the appeal process. Here, Summary Judgment was denied to the Carrier on the grounds of the failure to establish that the Eligible Injured Person (EIP), failed to appear for scheduled Independent Medical Evaluations (IME) required by the N.Y. No Fault regulations, (11 NYCRR) § 65-3.5(d), which prescribes a 30-calendar-day time frame for the holding of IMEs. The majority held the Carrier's proof, submitted in support of the motion for summary judgment, failed to make out a prima facie case, leaving the issue as a question of fact for the trial Court. "Contrary to the position taken by the dissent, the issue of whether plaintiff has failed to establish that the notices for the IMEs were timely, pursuant to 11 NYCRR 65-3.5(d), presents a question of law which this Court can review. Unlike the dissent, we find that plaintiff was required to submit proof of the timely notice in order to make a prima facie showing of entitlement to judgment as a matter of law. Any belated attempt by plaintiff to cure this deficiency in its prima facie showing by submitting evidence for the first time in reply would have been improper (see DiLapi v Saw Mill Riv., LLC, 122 AD3d 896, 900-901 [2nd Dept 2014]; Hawthorne v City of New York, 44 AD3d 544 [2007]; Scansarole v Madison Sq. Garden, L.P., 33 AD3d 517 [1st Dept 2006])."

In a strong dissent, Judge Friedman opens the door to review by the Court of Appeals, "Contrary to the position taken by the dissent, the issue of whether plaintiff has failed to establish that the notices for the IMEs were timely, pursuant to 11 NYCRR 65-3.5(d), presents a question of law which this Court can review. Unlike the dissent, we find that plaintiff was required to submit proof of the timely notice in order to make a prima facie showing of entitlement to judgment as a matter of law. Any belated attempt by plaintiff to cure this deficiency in its prima facie showing by submitting evidence for the first time in reply would have been improper (see DiLapi v Saw Mill Riv., LLC, 122 AD3d 896, 900-901 [2nd Dept 2014]; Hawthorne v City of New York, 44 AD3d 544 [2007]; Scansarole v Madison Sq. Garden, L.P., 33 AD3d 517 [1st Dept 2006])." ....The majority sidesteps the preservation issue by asserting that plaintiff was obligated to establish compliance with the section 65-3.5(d) time frame as part of its prima facie burden in moving for summary judgment. However, no appellate court has ever so held...... While this Court, in affirming summary judgment for the insurer in Unitrin, stated that the insurer had "satisfied its prima facie burden on summary judgment of establishing that it requested IMEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations" (82 AD3d at 560), the issue of the insurer's compliance or noncompliance with section 65-3.5(d) was not raised in that case. Thus, Unitrin's reference to the "time frames set forth in the no-fault implementing regulations" as part of an insurer's prima facie burden on a motion for summary judgment is dictum, not (as mischaracterized by the majority) a holding. Contrary to the majority's cavalier assertion that I "mistakenly" deny that it cites any authority for its position, Unitrin's statement about "time frames" does not constitute authority for the majority's position because that statement is not a holding on any issue that was actually raised in that case."

Exclusions In Standard Flood Insurance Policy: Marie Clifford had a residence in Plattsburgh, New York, right on Cumberland Bay, on the Vermont border. A beautiful part of New York, however, frequent floods occur. A Standard Flood Insurance Policy ("SFIP") issued by Preferred Mutual Insurance Company was at issue before the United States District Court, Northern District of New York, in Clifford v. Preferred Mut. Ins. Co., Docket No. 8:12-CV-1331 (N.D.N.Y. Sept. 15, 2015). In a ruling signed by Judge Scullin on September 15, 2015, the plaintiff's case was dismissed on motion. The insurance carrier argued the damage to the plaintiff's premises was caused by earth movement, not covered under the policy.

The Court held, "Under the SFIP, policyholders are not insured for "loss to property caused directly by earth movement even if the earth movement is caused by the flood." See 44 C.F.R. § 61 App. A(1) art. V(C). Courts of Appeals in two Circuits have found that the SFIP specifically excludes damages resulting from "earth movement" as compensable under an SFIP, even where that earth movement was the result of flooding. See Sodowski v. Nat'l Flood Ins. Program of FEMA, 834 F.2d 653, 657-59 (7th Cir.1987); Wagner v. Director, FEMA, 847 F.2d 515, 522-23 (9th Cir.1988)."

Plaintiff's counsel obviously read the Circuit Court decisions and tried to distinguish his facts. A novel argument, that ultimately failed. "Plaintiff further alleges that the earth movement preceding the damage to her house involved a layer of sand placed on top of the ground by the building contractor as a base for pouring the concrete slab foundation for her home. Plaintiff cites the affidavit of the contractor who built her home, wherein he stated that a sand subbase was put on top of the ground beneath her slab to increase the load that the slab could support, to reduce the risk of fracturing the slab, and to prevent water from the ground from moving into the slab. Plaintiff argues, "Accordingly, the layer of sand placed on top of the ground as the base for the slab in this case is a component of the construction of the house and it is separate and distinct from the ground underneath the layer of sand." However, there is no support, in statute or precedent, for Plaintiff's characterization of the sand beneath her foundation as a component of her home and her resulting conclusion that the subsidence exclusion should not apply to the movement of this sand."

Changes to E-Filing Regulations: On August 31, 2015, Governor Andrew Cuomo signed into law Chapter 237 of the Laws of 2015 mandating certain changes to E-filing regulations. This new legislation gives the Office of Court Administration and the Chief Judge, authorization for the use of mandatory E-filing in Supreme Court Civil parts. It also gives the Chief Judge authority to implement mandatory E-filing.

In addition, Chapter 237 authorizes the use of E-filing in the Appellate Divisions at the discretion of the Judicial Department. E-filing is the future of the New York State Court System. Soon, the E-file system will mirror the ECF system in Federal Court. The E-file system is a great benefit to attorneys, and we welcome the new changes. If we can only convince the Judges that "working copies" of every piece of paper filed online is not necessary. That may take some time.

Judge Rebolini orders plaintiff to turn over Facebook postings in Melissa "G" and Garry "G" v. North Babylon Union Free School District, et. al.,(Index No: 36209/2006), March 23, 2015.

What a plaintiff posts on Social Media is fair game for the defendant to review (within limits). In this action, the plaintiff alleged she was sexually abused as a student at defendant's school by a teacher. The defendant sought access to her "private" postings on her Facebook account.

"In support of their application, defendants submitted printed pages from Melissa's Facebook account depicting postings that were accessible to the general public on May 20, 2014, including photographs of Melissa engaged in a variety of recreational activities and "activities with her boyfriend . . .; at work in a veterinary hospital; rock climbing; and out drinking with friends." Toward the top of each page is a notation, "To see what she shares with friends, send her a friend request." Defendants also submitted printed pages from an account that appears to be jointly held by Melissa and her boyfriend. Defendants assert that the public content on plaintiff's Facebook pages, as well as the content available only to "friends", are material and necessary to the defense of plaintiffs' claims. In this regard, defendants note that plaintiff Melissa testified at her deposition on December 9, 2011 that she has "serious trust issues with everyone" and that she suffers from anxiety attacks. It was also her testimony that she was "struggling" in her relationship with her boyfriend and that she had "no trust" concerning others."

Judge Rebolini ruled, "To warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff's Facebook account - that is, information that "contradicts or conflicts with plaintiff's alleged restrictions, disabilities, and losses, and other claims" Insofar as plaintiffs claim as part of their damages that Melissa suffers a loss of enjoyment of life, among other things, the scope of relevant information subject to disclosure is broad. Compensation for loss of enjoyment of life addresses the loss of an individual's capacity to enjoy life by ". . . participating in recreational activities, and drinking in the many other pleasures that life has to offer . . .(McDougald v Garber, 73 NY2d 246, 258, 536 NE2d 372, 538 NYS2d 937 [1989, Titone, J., dissenting]). As defendants have shown that plaintiff's public Facebook pages contain photographs of Melissa engaged in a variety of recreational activities that are probative to her damage claims, it is reasonable to believe that other portions of her Facebook pages may contain further evidence relevant to the defense (see Richards v Hertz Corp., 100 AD3d 728, 953 NYS2d 654 [2d Dept 2012])."