Opinion
01-30-2024
Bernie MERCEDES, Plaintiff–Respondent, v. COOL WIND VENTILATION CORP. et al., Defendants–Respondents, New York Presbyterian Hospital–Columbia University et al., Defendants, v. Sumner Manufacturing Co., LLC, Defendant–Appellant.
Sheppard, Mullin, Richter & Hampton LLP, New York (Cesar F.F. Pereira of counsel), for appellant. Ehrlich Gayner, LLP, New York (Charles J. Gayner of counsel), for Bernie Mercedes, respondent. Milber Makris Plousadis & Seiden, LLP, Woodbury (William J. Goodbody of counsel), for Cool Wind Ventilation Corp., respondent. Cornell Grace, P.C., New York (George P. Cornell of counsel), for Heilman Construction Co., Inc., respondent.
Sheppard, Mullin, Richter & Hampton LLP, New York (Cesar F.F. Pereira of counsel), for appellant.
Ehrlich Gayner, LLP, New York (Charles J. Gayner of counsel), for Bernie Mercedes, respondent. Milber Makris Plousadis & Seiden, LLP, Woodbury (William J. Goodbody of counsel), for Cool Wind Ventilation Corp., respondent.
Cornell Grace, P.C., New York (George P. Cornell of counsel), for Heilman Construction Co., Inc., respondent.
Webber, J.P., Friedman, González, Shulman, Pitt–Burke, JJ.
Order, Supreme Court, New York County (Eric Schumacher, J.), entered on or about April 11, 2023, which, to the extent appealed from, denied defendant Sumner Manufacturing Co., LLC’s (Sumner) request to limit discovery to jurisdictional issues and either hold in abeyance or deny without prejudice to renew its CPLR 3211(a)(8) motions to dismiss plaintiffs complaint and the cross-claims of defendants Cool Wind Ventilation Corp. (Cool Wind) and Heilman Construction Co., Inc. (Heilman) until the completion of such limited jurisdictional discovery and a full hearing, unanimously affirmed, without costs.
It is well settled that "[a] trial court is vested with broad discretion regarding discovery, and its determination will not be disturbed absent a demonstrated abuse of that discretion" (148 Magnolia, LLC v. Merrimack Mut. Fire Ins. Co., 62 A.D.3d 486, 487, 878 N.Y.S.2d 727 [1st Dept. 2009]). Appellate courts "rarely and reluctantly invoke" their power to substitute their discretion for that of the motion court (see M.P. v. Jewish Bd. of Family & Children’s Servs., 211 A.D.3d 584, 585, 181 N.Y.S.3d 55 [1st Dept. 2022]).
When a court reviews a motion to dismiss under CPLR 3211, it must "accept as true the facts as alleged in the complaint and submissions in opposition to the motion, accord plaintiffs the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory" (Sokoloff v. Harriman Estates Dev. Corp., 96 N.Y.2d 409, 414, 729 N.Y.S.2d 425, 754 N.E.2d 184 [2001]). Moreover, pursuant to CPLR 3211(d), "the court may deny the motion, .. [and] may order a continuance to permit … disclosure to be had and may make such other order as may be just." Here, Sumner failed to establish that the court improvidently exercised its discretion by denying its request to limit discovery to jurisdiction related issues and indefinitely hold its motions in abeyance until such jurisdictional discovery was complete. Sumner ignores that the court denied its CPLR 3211(a)(8) motions to dismiss without prejudice to renew if appropriate. Moreover, if Sumner is served with a discovery demand that it deems overly broad, it can move for a protective order (Peterson v. Spartan Indus., 33 N.Y.2d 463, 468, 354 N.Y.S.2d 905, 310 N.E.2d 513 [1974]; Mariner Pac., Ltd. v. Sterling Biotech Ltd., 106 A.D.3d 667, 668, 966 N.Y.S.2d 80 [1st Dept. 2013]).