J.G. v. Zachman

• Decision Date: 17 November 2006
• Docket Number: CA 06-01107.
• Citation: 825 N.Y.S.2d 621,34 A.D.3d 1277,2006 NY Slip Op 08463
• Parties: J.G., et al., Infants, by Their Parent and Natural Guardian CLEVELAND GRANT, Appellants, v. PAUL ZACHMAN et al., Respondents, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

34 A.D.3d 1277

825 N.Y.S.2d 621

2006 NY Slip Op 08463

J.G., et al., Infants, by Their Parent and Natural Guardian CLEVELAND GRANT, Appellants, v. PAUL ZACHMAN et al., Respondents, et al., Defendant.

CA 06-01107.

Appellate Division of the Supreme Court of the State of New York, Fourth Department.

Decided November 17, 2006.

Appeal from an order of the Supreme Court, Monroe County (Thomas M. Van Strydonck, J.), entered September 16, 2005 in a personal injury action. The order, among other things, granted the motion of defendant Paul Zachman for a protective order.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum:

Plaintiffs, by their parent and natural guardian, Cleveland Grant (Grant), commenced this action seeking damages for injuries allegedly sustained from exposure to lead paint in three separate residences. Defendant Paul Zachman moved for a protective order striking plaintiffs' notice to admit requesting that Zachman and defendant Ben Pennetta admit, inter alia, that Grant is not a party to the action. Plaintiffs cross-moved for, inter alia, an order declaring that Grant is not a party to the action or, in the alternative, plaintiffs requested that Supreme Court take judicial notice that Grant is not a party to the action, and they further sought an order permitting plaintiff J.G. to discontinue the action against Pennetta and defendant Alan Shao. Plaintiffs appeal from an order that, inter alia, granted Zachman's motion for a protective order, denied those parts of plaintiffs' cross motion noted above and sua sponte ordered that a parent of plaintiffs, if subpoenaed, attend the physical examinations of plaintiffs in order to provide consent and any necessary medical history.

"A trial judge is vested with broad discretion to control discovery and disclosure and its determination of such issues will only be disturbed on a showing of clear abuse" (Cerasaro v Cerasaro, 9 AD3d 663, 664 [2004]). We conclude that, contrary to plaintiffs' contentions, the court did not abuse its discretion in the matters of discovery and disclosure herein.

Although we recognize that "`ordinarily a party cannot be compelled to litigate,'" we conclude that the court did not abuse its discretion in denying that part of plaintiffs' cross motion seeking to discontinue the action against Pennetta and Shao (White v County of Erie, 309 AD2d 1299, 1300 [2003]; see generally Tucker v Tucker, 55 NY2d 378, 383-384 [1982]). We further conclude that the court properly granted Zachman's motion for a protective order and denied that part of plaintiffs' cross motion seeking to...