SEQ. NUMBER Third-Party Plaintiffs. -against

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1 SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU Present: HON. DANIEL PALMIERI Acting Justice Supreme Court x KARIS SA ZITO, -against- Plaintiff, DAME BEAUTY SALON, INC. and DAME BEAUTY SALON INC. d/b/a HAIR 2000, GOLDWELL COSMETICS (USA), INC., KPSS CANADA L TD and ANDREA CROWLEY, Defendants x DAME BEAUTY SALON INC. and DAME BEAUTY SALON INC. d/b/a HAIR 2000, and ANDREA CROWLEY TRIAL PART: 50 INDEX NO. : 16994/04 ACTION # 1 MOTION DATE:8-10- SUBMIT DATE: SEQ. NUMBER MOTION DATE: SUBMIT DATE: SEQ. NUMBER Third-Party Plaintiffs -against BPI BEAUTY PRODUCTS, INC. Third-Party Defendants x DAME BEAUTY SALON INC. and DAME BEAUTY SALON INC. d/b/a HAIR 2000, and ANDREA CROWLEY -against Second Third-Party Plaintiffs

2 KAO PROFESSIONAL SALON SERVICES a/k/a KPSS, INC. Second Third-Party Defendants x DAME BEAUTY SALON INC. and DAME BEAUTY SALON INC. d/b/a HAIR 2000, and ANDREA CROWLEY CHARLES L. BRUZZONE, M. Third Third-Party Plaintffs, Third Third-Party Defendants x DAME BEAUTY SALON INC. and DAME BEAUTY SALON INC. d/b/a HAIR 2000, and ANDREA CROWLEY, -against- -against- Fourth Third-Party Plaintiffs, PAUL MUSCARELLO, M.D. and OLD COUNTRY PEDIATRICS, P.C., Fourth Third-Party Plaintiffs x SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU x KARIS SA ZITO, Plaintiff ACTION NO. INDEX NO /05 -against BPI BEAUTY PRODUCTS, INC. Defendant x

3 ... The following papers have been read on this motion: Order to Show Cause, dated Notice of Cross Motion, dated Affirmation in Opposition, dated Affirmation in Opposition, dated Reply Affirmation, dated Reply Affirmation, dated The motion by defendants, Dame Beauty Salon, Inc., Dame Beauty Salon, Inc. d/b/a Hair 2000 and Andrea Crowley (collectively referred to herein as "Dame ), and the motion, incorrectly labeled "cross motion, by plaintiff, Karissa Zito ("Zito ), both, for an Order of this Court, pursuant to CPLR 3126, striking defendant', Goldwell Cosmetics (USA), Inc. ("Goldwell") Answer and Cross Claims for failure to properly reply to various Notices for Discovery and Inspection are DENIED. Plaintiff, Karissa Zito, alleges herein that as a result of a bleaching product used by the defendant, Dame, in lightening her hair, she was caused to sustain serious personal injuries, including a 3" x 2" third degree burn to her scalp. On October , Dame applied a bleaching product, Oxycur Platin ("Oxycur ), distributed by defendant Goldwell, in the 17 year old patron s hair. On March 1, 2004, Zito commenced a negligence action against the beauty salon Dame. Subsequently, on December , Zito commenced an action against Goldwell KPSS (the successor in interest to Goldwell (USA)) and Andrea Crowley asserting claims of strict products liabilty and failure to warn. By an Order of this Court dated February 2005, the two actions were consolidated. Thereafter, Dame commenced four separate third part actions against BPI Beauty Products, Inc. ; KPSS, Inc. ; Charles L. Bruzzone

4 MD; Paul Muscarello, MD and Old Country Road Pediatrics, P. On December , Dame served a Notice for Discovery and Inspection on Goldwell (see Order to Show Cause Ex. P). As a result of not having received "proper responses to the demands however, on March , it served another Notice for Discovery and Inspection on Goldwell (see id. Ex. Q). Thereafter, the next day, on March , Dame again served another Notice for Discovery and Inspection dated March 14, 2006 on Goldwell (see id. Ex. R) for which it acknowledges that it received Goldwell' s reply, albeit an "unacceptable" reply, on June 8, Dame claims that the June 8, 2006 reply "failed to provide responses to certain demands citing objections which are without merit" (see Affrmation in Support 28). Upon the instant motion, Dame now moves to strike Goldwell' s answer and cross claims on the grounds that it has failed to properly reply to its Notices for Discovery and Inspection dated December and March PlaintiffZito, by way ofa separate motion, joins in this request. In opposition, Goldwell argues that it has provided all parties with copies of many of the voluminous documents which the plaintiff and co-defendant, Dame, have sought for document production. Further, Goldwell argues that Dame seeks to use the information and documents furnished by (it) as a base from which to seek more documents and more information. One fishing expedition begets another fishing expedition calculated to harass Goldwell and wear it down. Dame improperly seeks inter alia to obtain Goldwell' s attorneys' work product, and privileged material prepared in contemplation of litigation (see Affrmation in Opposition 7).

5 An action should be determined on the merits whenever possible (see Cruzatti St. Mary s Hosp. 193 AD2d 579 (2 d Dept. 1993)). Thus, the drastic remedy of striking an answer is inappropriate absent a clear showing that the failure to comply with the discovery demands was " wilful, contumacious or in bad faith" (CPLR 3126(3); Kaplan v. Emmett 265 AD2d 307 (2nd Dept. 1999); see Garcia v. First Spanish Baptist Church of Is lip, 259 AD2d 465 (2 d Dept. 1999)). A part' s dissatisfaction with responses to discovery demands proffered by the other part is an insufficient basis upon which to conclude that such other part wilfully and contumaciously failed to comply (see E.K. Const. Co., Inc. v. Town of North with a court order compellng disclosure Hempstead, 144 AD2d 427 (2 d Dept 1988); Miler v. Duff, 126 AD2d 527 (2 d Dept 1987)). Here, the record simply fails to support a finding that any failure by the defendant Goldwell, to comply with the discovery demands was wilful. Thus, Dame and Zito ' s motions to strike Goldwell' s answer are both denied. Having said that however, this Court herewith directs defendant, Goldwell to produce and comply with movants' disclosure demands as outlined below, within 60 days after service of the copy of the order herein. Pursuant to CPLR 3120, parties are authorized to secure the inspection of designated documents (or other items) from other litigants in the lawsuit (CPLR 3120). However, whether the items sought are ultimately disclosable and therefore subject to production under CPLR 3120 is determined by CPLR 3101 ( a). CPLR (a) provides that " (t)here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof' (CPLR 3101 (a)). Ultimately,

6 what constitutes "material and necessary" is within this Court' s discretion (see Garcia, supra; see also Greater New York Mut. Ins. Co. v. Lancer Ins. Co. 203 AD2d 515 (2 Dept. 1994)). Dame s December and its first March Notice for Discovery and Inspection (see Order to Show Cause Exs. P & Q) mainly seek the discovery of prior and subsequent instances wherein similar injuries were sustained following the use of Oxycur; and the records of the phone calls which were received by the " Goldwell Hotline (see Notice of Motion Ex. P). While undoubtedly the records and discovery items sought are material and necessary" to the litigation within (CPLR 3101(a)), Dame argues that " (t)his office asked for Hotline calls for a ten year period and GOLDWELL only responded for a six year period. " Dame further maintains that " (t)o date, GOLDWELL has only identified four cases involving an adverse reaction concerning the use of Oxycur Platin but... this office s investigation has identified at least nine lawsuits commenced against GOLDWELL wherein it was claimed that injuries identical or similar to those in the instant matter were sustained following the use of Oxycur Platin (see Affrmation in Support ~26). As to the lawsuits, this Court finds that discovery of other claims against Goldwell is permissible under CPLR 3101(a) to the extent that it is limited to claims similar in nature to those asserted by plaintiff (see Mestman v. Ariens Co AD2d 516, 517; Johantgen v. Hobart Mfg. Co. 64 AD2d ). Discovery of similar litigation is appropriate (Galioto v. Sears, Roebuck Co. 262 AD2d 1035 (4th Dept. 1999)). However, as in Galioto the information required to be provided by Goldwell under item 2 of the December Notice for Discovery and Inspection and items 2 and 3 of the

7 turn. 1. Dame has agreed to limit its request to the production of a list of stylists to which Goldwell sent s, newsletters and other documents regarding specifically the products, Oxycur and Topchic Developer (and said products which may have been known by a prior name) (see Reply Affrmation ~36). As such, this Court finds that the production of the list of stylists to which Goldwell forwarded the information is relevant and specific enough (for a period of five years prior to October 9, 2002 and up to January 2004) to permit a discovery response without undue burden. 2. Mr. Goneau, for Goldwell, testified at his EBT that there exist handwritten reports which give further details as to what was discussed during the Insofar as Goldwell has not provided copies of the handwritten reports of the hotlne phone calls. approximately 20 or 30 instances wherein individuals claimed to have sustained injuries to their scalp or other adverse physical reactions by the use of Oxycur, this Court herewith directs Goldwell to produce same. 3. Mr. Goneau at his EBT also stated that Goldwell advised its distributors that they should reinforce training and instruction as to the recommended use and application of Oxycur. Goldwell now objects to Dame s demand of any such correspondence on the grounds that the existence of the documents has not been established and that the testimony of Mr. Goneau was misstated. As Goldwell has failed to state that the documents requested simply do not exist, are not in their possession, or cannot be located (Castilo v. Henry Schein, Inc. 259 AD2d 651 (2 d Dept 1999)), this Court herewith directs Goldwell to either confirm or deny that such records exist and if they do exist, to produce them.

8 testing of Oxycur. 7. Dame s seventh demand for a copy of the newsletter generated by Goldwell regarding the product Elumen which Mr. Goneau testified as having been received with difficulty by consumers is simply not relevant to the case at hand. Dame argues in its reply affirmation that it " wishes to establish the nature of a newsletter which could have been circulated relative to this issue as it had been in relation to another Goldwell product. Perhaps, Goldwell is concerned that it did not circulate such a newsletter relative to Oxycur Platin and does not wish to establish how simply and effectively it could have been done (see Reply Affrmation 54). This Court is not persuaded by this argument and as such Dame and Zito s request for productio of same is denied., as testified to by Mr. Goneau 8. This demand seeks a copy of all correspondence s concern that BPI was not fully at his EBT, from Goldwell to BPI expressing Goldwell' utilzing the education fund available. Goldwell claims that it is unable to locate such documents and is searching for them. As with Dame s third demand, this Court directs Goldwell to either confirm or deny that such documents and records exist and if they do exist, to produce them. 9. And 11. Demands 9 and 11 for the address of Matthew Soiffer and for a copy of for his all non-privileged records which were reviewed by Mr. Goneau in preparatio testimony are no longer in issue as those demands have been complied with. 12. Finally Dame concedes that its twelfth demand is no longer in issue. To the extent that plaintiff, Zito, adopts and relies on Dame s Order to Show Cause and its accompanying affirmation in support, for the foregoing reasons, motion to strike Goldwell' s answer is also denied in its entirety. plaintiff s

9 Plaintiff argues that defendant, Goldwell, failed to respond to its discovery demands, specifically to its Notices for Discovery and Inspection dated May 3, 2005 March and May 22, Based upon a simple and plain reading of the papers submitted for this Court' s consideration however, including Exhibits A, Band C to Goldwell' s Opposition to Zito s motion, this Court finds that Zito s allegations of failure to respond or respond properly are not accurate. Accordingly, Zito s motion to strike Goldwell' s answer is also denied. Defendant, Goldwell is directed to produce and comply with movants' disclosure demands as outlined herein, within 45 days after service of the copy of the order herein. In view of the determinations made in this order, the conference currently scheduled for November is hereby adjourned to December 13, This shall constitute the Decision and Order of this Court DATED: October 20, 2006 ENTER HON. DANIEL PALMIERI Acting Supreme Court Justice t\:.re.o TO: Rose M. Day, Esq. Day & Associates, P. Attorneys for Plaintiff 11 Grace Avenue (Suite 408) Great Neck, NY CQut4"("f QC\ '2 4 1 coun-r \) EP,\($ o

10 Polin, Prisco & Vilafane, Esqs. Attorneys for Defendant Goldwell Cosmetics (USA) Inc. One School Street - Ste. 206 Glen Cove, NY Tromello, McDonnell & Kehoe Attorneys for Defendants Dame Beauty Salon Inc. and Dame Beauty Salon Inc. d/b/a Hair 2000 and Andrea Crowley O. Box 948 Melvile, NY Bamundo, Swal & Schermerhorn, LLP Attorneys for Defendant KPSS Canada Ltd. And Second Third-Part Defendants KAO Professonal Salon Services a/k/a KPSS, Inc. 111 John Street, Ste New York, NY Hertzfeld & Rubin, P. Attorney for Defendant BPI Products, Inc. 33 South Service Road Jeticho, NY Shaw, Licitra, Gulotta Esernio & Schwartz, P. Attorney for Third-Third -Part Defendant Charles L. Bruzzone, M.D. and for Fourth Third-Part Defendant Old Country Pediatrics, P Franklin Avenue Garden City, NY Law Offices of Mitchell J. Angel, PLLC Attorneys for Fourth Third-Part Defendant Paul Muscarello, M. 170 Old Country Road Mineola, NY 11501