Summary
granting protective order vacating request for documents
Summary of this case from City of New York v. 330 Cont. LLCOpinion
December 12, 1994
Appeal from the Supreme Court, Nassau County (Saladino, J.).
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly granted the respondents a protective order, vacating the appellants' request for production of documents, inasmuch as certain of the documents sought were already in the appellants' possession, while many of the other documents sought were not specified "with reasonable particularity" as required by CPLR 3120 (a) (1) (former [i]) (see, CPLR 3120 [a] [2]). Under these circumstances, vacatur of this discovery demand is the appropriate remedy, rather than pruning by this Court (see, e.g., Lopez v Huntington Autohaus, 150 A.D.2d 351, 352; Cramp v Cramp, 114 A.D.2d 835).
Additionally, the Supreme Court properly declined to order the respondents' attorney to submit to an examination before trial, inasmuch as the appellants failed to serve this prospective nonparty witness with a subpoena (see, CPLR 3106 [b]; Frybergh v Kouffman, 119 A.D.2d 541; Iskander v Melcone, 52 A.D.2d 592; see also, Merrick v Niagara Mohawk Power Corp., 144 A.D.2d 878).
We decline to review the appellants' contention that the respondents' attorney should have been disqualified, as it was not properly presented to the Supreme Court and is being raised for the first time on this appeal.
We have examined the appellants' remaining contentions and find them to be without merit. Lawrence, J.P., Santucci, Altman and Goldstein, JJ., concur.