Opinion
2021–03351 Westchester County Index No. 68497/19
02-23-2022
David B. FOX, respondent, v. ROMAN CATHOLIC ARCHDIOCESE OF NEW YORK, appellant, et al., defendants.
Rivkin Radler, LLP, Uniondale, NY (Frank Raia, Cheryl F. Korman, and Henry Mascia of counsel), for appellant. Grant & Eisenhofer, P.A., New York, NY (Barbara J. Hart, Irene R. Lax, and Samantha L. Breitner of counsel), for respondent.
Rivkin Radler, LLP, Uniondale, NY (Frank Raia, Cheryl F. Korman, and Henry Mascia of counsel), for appellant.
Grant & Eisenhofer, P.A., New York, NY (Barbara J. Hart, Irene R. Lax, and Samantha L. Breitner of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., SHERI S. ROMAN, LARA J. GENOVESI, DEBORAH A. DOWLING, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for negligence, negligent hiring, negligent supervision, and negligent retention of an employee, the defendant Roman Catholic Archdiocese of New York appeals from an order of the Supreme Court, Nassau County (Part CVA–R) (Steven M. Jaeger, J.), dated May 5, 2021. The order, insofar as appealed from, denied stated portions of that defendant's motion pursuant to CPLR 3103(a) for a protective order striking the plaintiff's first supplemental notice of discovery and inspection, dated August 21, 2020, and the plaintiff's first set of interrogatories, dated August 28, 2020.
ORDERED that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, and the motion of the defendant Roman Catholic Archdiocese of New York pursuant to CPLR 3103(a) for a protective order striking the plaintiff's first supplemental notice of discovery and inspection, dated August 21, 2020, and the plaintiff's first set of interrogatories, dated August 28, 2020, is granted in its entirety.
The plaintiff commenced this action pursuant to the Child Victims Act (see CPLR 214–g ), alleging that, in the mid–1960s, while he was a child, he was sexually abused by the defendant Edwin Gaynor. At the time the abuse allegedly occurred, Gaynor was a grade school physical education teacher at a school operated by the defendant Church of Immaculate Heart of Mary (hereinafter IHM), and the plaintiff was a student at the school. As against the defendant Roman Catholic Archdiocese of New York (hereinafter the Archdiocese), the plaintiff alleged, inter alia, causes of action sounding in negligence, negligent hiring, negligent supervision, and negligent retention of Gaynor. The plaintiff served a first supplemental notice of discovery and inspection (hereinafter the discovery demand) on the Archdiocese on August 21, 2020, and a first set of interrogatories (hereinafter the interrogatories) on the Archdiocese on August 28, 2020. In response thereto, the Archdiocese moved pursuant to CPLR 3103(a) for a protective order striking the discovery demand and the interrogatories. By order dated May 5, 2021, the Supreme Court only partially granted the Archdiocese's motion, by striking many of the interrogatories and about half of the discovery demands. The Archdiocese appeals.
CPLR 3101(a) requires, in pertinent part, "full disclosure of all matter material and necessary in the prosecution or defense of an action." "However, ‘[a] party is not entitled to unlimited, uncontrolled, unfettered disclosure’ " ( Lombardi v. Lombardi, 190 A.D.3d 964, 966, 140 N.Y.S.3d 264, quoting Geffner v. Mercy Med. Ctr., 83 A.D.3d 998, 998, 922 N.Y.S.2d 470 ; see Kiernan v. Booth Mem. Med. Ctr., 175 A.D.3d 1396, 1398, 109 N.Y.S.3d 139 ). Pursuant to CPLR 3103(a), the Supreme Court may issue a protective order striking notices for discovery and inspection and interrogatories that are palpably improper (see id. § 3101[a] ; Arch Ins. Co. v. Delric Constr. Co., Inc., 174 A.D.3d 560, 561, 103 N.Y.S.3d 568 ; Ural v. Encompass Ins. Co. of Am., 158 A.D.3d 845, 847, 73 N.Y.S.3d 91 ).
Notices for discovery and inspection and interrogatories are palpably improper if they are overbroad or burdensome, fail to specify with reasonable particularity many of the documents demanded, or seek irrelevant or confidential information (see CPLR 3120[2] ; Kiernan v. Booth Mem. Med. Ctr., 175 A.D.3d at 1397–1398, 109 N.Y.S.3d 139 ; Ural v. Encompass Ins. Co. of Am., 158 A.D.3d at 847, 73 N.Y.S.3d 91 ; Jordan v. City of New York, 137 A.D.3d 1084, 1084–1085, 27 N.Y.S.3d 656 ). Where the discovery demands are overbroad, the appropriate remedy is to vacate the entire demand rather than to prune it (see Bennett v. State Farm Fire & Cas. Co., 189 A.D.3d 749, 750, 137 N.Y.S.3d 120 ; Pascual v. Rustic Woods Homeowners Assn., Inc., 173 A.D.3d 757, 758, 104 N.Y.S.3d 110 ; Bell v. Cobble Hill Health Ctr., Inc., 22 A.D.3d 620, 621, 804 N.Y.S.2d 362 ). "The burden of serving a proper demand is upon counsel, and it is not for the courts to correct a palpably bad one" ( Lopez v. Huntington Autohaus, 150 A.D.2d 351, 352, 540 N.Y.S.2d 874 ; see Bell v. Cobble Hill Health Ctr., Inc., 22 A.D.3d at 621, 804 N.Y.S.2d 362 ).
Here, the plaintiff's discovery demand and interrogatories were palpably improper in that they were overbroad and burdensome, sought irrelevant or confidential information, or failed to specify with reasonable particularity many of the documents demanded (see Lombardi v. Lombardi, 190 A.D.3d at 964, 140 N.Y.S.3d 264 ; JPMorgan Chase Bank, N.A. v. Levenson, 149 A.D.3d 1053, 1055, 53 N.Y.S.3d 150 ; Stepping Stones Assoc., L.P. v. Scialdone, 148 A.D.3d 855, 50 N.Y.S.3d 76 ; Berkowitz v. 29 Woodmere Blvd. Owners', Inc., 135 A.D.3d 798, 799, 23 N.Y.S.3d 352 ; Bell v. Cobble Hill Health Ctr. Inc., 22 A.D.3d at 621, 804 N.Y.S.2d 362 ). Accordingly, the Supreme Court should have granted the Archdiocese's motion and struck the discovery demand and interrogatories in their entirety, instead of pruning them.
BRATHWAITE NELSON, J.P., ROMAN, GENOVESI and DOWLING, JJ., concur.