Opinion
February 21, 1995
Appeal from the Supreme Court, Queens County (Rutledge, J.).
Ordered that the order is modified by (1) deleting the provision thereof which denied the plaintiffs' motion for a protective order, and substituting therefor a provision granting the plaintiffs' motion, and (2) deleting the provision thereof which conditionally denied the defendants' cross motion for summary judgment dismissing the complaint and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with costs to the plaintiffs.
Contrary to the defendants' contention, the specific requests in their fourth set of interrogatories to the plaintiffs Louis and Theodore Neos which are the subject of the plaintiff's motion for a protective order, as well as the documents which the court directed the plaintiffs to produce, are neither material nor necessary to the prosecution or defense of the action. Therefore, the Supreme Court erred when it denied the plaintiffs' motion for a protective order and ordered the plaintiffs to produce the requested documents as a condition for the denial of the defendants' cross motion (see, Roberts v. Modica, 92 A.D.2d 563; see also, Alpha Intl. Assocs. v. Goldberg, 76 A.D.2d 873; cf., Allen v. Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406-407).
There is no merit to the defendants' remaining contentions. Miller, J.P., O'Brien, Santucci and Florio, JJ., concur.