Central Nat. Bank, Canajoharie v. Thorington
| Decision Date | 05 December 1985 |
| Parties | CENTRAL NATIONAL BANK, CANAJOHARIE, Appellant, v. Donald THORINGTON et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Bouck, Holloway, Kiernan & Casey (Francis J. Holloway, of counsel), Albany, for appellant.
Merton Morlang, Cobleskill, for respondents.
Before KANE, J.P., and MAIN, CASEY, WEISS and LEVINE, JJ.
Appeal from an order of the Supreme Court at Special Term (Pennock, J.), entered October 23, 1984 in Schoharie County, which denied plaintiff's motion for a protective order.
Defendants are the principals of a corporation which obtained a $20,000 mortgage loan from plaintiff, upon which both defendants executed a written guarantee dated December 27, 1973. Concomitantly, the corporation obtained another mortgage from John C. Fick and his wife in the sum of $46,000. Thereafter, plaintiff, as assignee of the Fick mortgage, obtained a default judgment against the corporation by stipulation in open court in the amount of $31,363.90. In the instant lawsuit, plaintiff seeks to hold defendants individually liable, contending that the December 27, 1973 written guarantee extended to all debts owed to plaintiff regardless of origin. The complaint also seeks recovery of counsel fees pursuant to the terms of the guarantee. After joinder of issue, defendants served a notice to take deposition upon oral examination which included a request to produce all underlying documentation relating to the Fick mortgage, including payment schedules, retainer agreements with plaintiff's attorney and all demands for payment. Plaintiff moved for a protective order seeking to strike defendants' documentation request in its entirety on the ground of immateriality, since the action sought to enforce a written guarantee, not to collect on the note or mortgage. Plaintiff contends that the discovery request was merely to harass. Special Term denied the motion and this appeal by plaintiff ensued.
It is well established that trial courts are vested with broad discretion in the supervision of disclosure (Nitz v. Prudential-Bache Securities, 102 A.D.2d 914, 915, 477 N.Y.S.2d 479). CPLR 3101(a) provides for the disclosure of all material and necessary evidence and is liberally construed in favor of disclosure (Goldberg v. Blue Cross, 81 A.D.2d 995, 440 N.Y.S.2d 349). A party seeking to prevent disclosure bears the burden of demonstrating the immunity of the items sought to be protected (see, Graf v. Aldrich, 94 A.D.2d 823, 824, 463 N.Y.S.2d 124). These principles in mind, we find Special Term's determination, with one exception, to be within the scope of its authority. The pivotal fact in this proceeding is the capacity in which defendants appear, i.e., as individuals. While the corporation may well have stipulated to the judgment which plaintiff presently...
To continue reading
Request your trial
-
Marten v. Eden Park Health Services Inc.
...sought is immune from disclosure" (Bloss v. Ford Motor Co., supra, at 805, 510 N.Y.S.2d 304; see, Central Natl. Bank v. Thorington, 115 A.D.2d 829, 830, 495 N.Y.S.2d 787). Here, plaintiff must support her claim of immunity by showing that the requested material is privileged by virtue of be......
-
LoGatto v. LoGatto
...v. Elias, 120 A.D.2d 703, 502 N.Y.S.2d 772; Jonmaire v. Town of W. Seneca, 120 A.D.2d 928, 502 N.Y.S.2d 885; Central Natl. Bank v. Thorington, 115 A.D.2d 829, 429 N.Y.S.2d 787). With these principles in mind, we find the court's determination to be within the scope of its authority and nece......
-
Bloss v. Ford Motor Co.
...prevent disclosure bears the burden of establishing that the information sought is immune from disclosure (Central Natl. Bank v. Thorington, 115 A.D.2d 829, 830, 495 N.Y.S.2d 787). Turning first to whether the indexes constituted attorney's work product, the term "work product" has been nar......