Foster v. Herbert Slepoy Corp.

• Decision Date: 22 June 2010
• Citation: 74 A.D.3d 1139,902 N.Y.S.2d 426
• Parties: Paula FOSTER, plaintiff, v. HERBERT SLEPOY CORP., et al., appellants, Kerry Clancy, respondent.
• Court: New York Supreme Court — Appellate Division

902 N.Y.S.2d 426
74 A.D.3d 1139

Paula FOSTER, plaintiff,
v.
HERBERT SLEPOY CORP., et al., appellants,
Kerry Clancy, respondent.

Supreme Court, Appellate Division, Second Department, New York.

June 22, 2010.

Fumuso, Kelly, DeVerna, Snyder, Swart & Farrell, LLP, Hauppauge, N.Y. (Scott G. Christesen of counsel), for appellants.

74 A.D.3d 1139

In an action to recover damages for personal injuries, the defendants Herbert Slepoy Corp. and North and South Lewis Place Owners Corp. appeal from an order

902 N.Y.S.2d 427

of the Supreme Court, Nassau County (Diamond, J.), dated November 7, 2008, which denied their motion pursuant to CPLR 3124 and 3126 to compel the defendant Kerry Clancy to produce documents requested in their notice of discovery and inspection dated June 10, 2008, and to appear for another deposition.

74 A.D.3d 1140

ORDERED that the order is affirmed, without costs or disbursements.

CPLR 3101(a) requires "full disclosure of all matter material and necessary in the prosecution or defense of an action." "The phrase 'material and necessary' should be 'interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason' " ( Friel v. Papa, 56 A.D.3d 607, 608, 869 N.Y.S.2d 117, quoting Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430). A party, however, does not have the right to "uncontrolled and unfettered disclosure" ( Gilman & Ciocia, Inc. v. Walsh, 45 A.D.3d 531, 531, 845 N.Y.S.2d 124; see Barouh Eaton Allen Corp. v. International Bus. Machs. Corp., 76 A.D.2d 873, 429 N.Y.S.2d 33). " 'It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims' " ( Vyas v. Campbell, 4 A.D.3d 417, 418, 771 N.Y.S.2d 375, quoting Crazytown Furniture v. Brooklyn Union Gas Co., 150 A.D.2d 420, 421, 541 N.Y.S.2d 30).

"The Supreme Court has broad discretion in the supervision of discovery, and its determinations should not be disturbed on appeal unless improvidently made" ( Casabona v. Huntington Union Free School Dist., 29 A.D.3d 723, 723, 816 N.Y.S.2d 143; see Andon v. 302-304 Mott St. Assoc., 94 N.Y.2d 740, 746, 709 N.Y.S.2d 873, 731 N.E.2d 589; Milbrandt & Co., Inc. v. Griffin, 19...