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BECAUSE THE NONPARTY WITNESS, WHO WAS PLAINTIFF’S ASSAILANT, HAD A COMMON NAME AND WAS HOMELESS, PLAINTIFF WAS ENTITLED TO DISCOVERY OF THE WITNESS’S DATE OF BIRTH AS AN AID IN LOCATING HIM; PLAINTIFF WAS NOT ENTITLED TO THE WITNESS’S SOCIAL SECURITY NUMBER HOWEVER (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to the birth date of a nonparty witness who was plaintiff’s assailant’s in the underlying event. Because the witness was homeless and had a common name, the witness’s date of birth would help in locating him. Plaintiff was not entitled to the witness’s social security number, however:

Supreme Court should have granted plaintiff’s request that defendants provide the date of birth of the nonparty witness. “[O]rdinarily the names and addresses of witnesses are a proper subject of disclosure” … . The identity of an active participant in an incident is discoverable because “‘the witness was so closely related to the [incident] that his testimony [became] essential in establishing [its] happening'” … .

Plaintiff seeks disclosure of the date of birth and social security number of the nonparty witness, who was also plaintiff’s assailant in the incident underlying the litigation. Defendants have already disclosed that plaintiff’s assailant, who has a remarkably common name, was homeless. Accordingly, the ordinary disclosure of “names and addresses” is unlikely to assist plaintiff in locating the witness. Disclosure of his date of birth may assist plaintiff in identifying and locating the witness. Defendants are not required to provide the witness’s social security number, however, as courts have recognized a heightened level of confidentiality with respect to an individual’s social security number. Lane v City of New York. 2023 NY Slip Op 06480, First Dept 12-19-23

Practice Point: Here plaintiff was entitled to discovery of a witness’s date of birth as an aid to locating him because the witness was homeless and had a very common name. However plaintiff was not entitled to the witness’s social security number which is protected by a higher level of confidentiality.

 

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