911 Alwyn Owners Corp. v. Rosenthal

160 A.D.2d 321

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 10, 1990
• Status: Published

Opinion

—Order, Supreme Court, New York County (Elliott Wilk, J.), entered October 11, 1989, which directed the plaintiffs to produce certain investigative reports to the court, unanimously affirmed, without costs.

After the Supreme Court ordered the plaintiffs to produce certain investigative reports for its in camera inspection, the plaintiffs sought and were granted a stay of the order by this court. When the plaintiffs failed to produce the requested documents at the time that an attorney from the office of plaintiffs’ counsel was at this court applying for the stay, the Supreme Court directed counsel for the defendants to submit an order, inter alia, striking the plaintiffs’ pleadings. No such order appears in the record.

The plaintiffs may only appeal from the original order directing the production of the reports since that was the only duly entered order of the Supreme Court (CPLR 5512; 22 NYCRR 202.12 [d]; Herbert v City of New York, 126 AD2d 404 [1st Dept 1987]).

We find that the Supreme Court properly exercised its discretion in directing the plaintiffs to produce the reports for an in camera inspection since the plaintiffs claimed that the reports were privileged (see, Herbert v City of New York, supra). However, we would note that the sua sponte direction to defense counsel to submit an order striking the pleadings was inappropriate. The court should have informed counsel that it would strike the pleadings unless the requested reports were produced in compliance with its order. Concur—Kupferman, J. P., Sullivan, Rosenberger, Asch and Smith, JJ.