Community Development Ass'n v. Warren-Hoffman & Associates, Inc.

4 A.D.3d 755, 771 N.Y.S.2d 786, 2004 N.Y. App. Div. LEXIS 1443

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 11, 2004
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Chautauqua County (Joseph Gerace, J.), entered December 18, 2002. The order denied that part of the motion of defendant Warren-Hoffman & Associates, Inc. seeking to strike the answer of or, in the alternative, to compel production of certain documents by defendant American & Foreign Insurance Company, also known as Royal & Sunalliance.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs.

Memorandum: Supreme Court “is invested with broad discretion to supervise discovery and to determine what is ‘material and necessary’ as that phrase is used in CPLR 3101 (a)” (NBT Bancorp v Fleet/Norstar Group, 192 AD2d 1032, 1033 [1993]), and “only a clear abuse of discretion will prompt appellate action” (Geary v Hunton & Williams, 245 AD2d 936, 938 [1997]; see Saratoga Harness Racing v Roemer, 274 AD2d 887, 888 [2000]). We perceive no such “clear abuse of discretion” in the court’s denial of that part of the motion of defendant Warren-Hoffman & Associates, Inc. (Warren-Hoffman) seeking to strike the answer of or, in the alternative, to compel production of certain documents by defendant American & Foreign Insurance Company, also known as Royal & Sunalliance (American & Foreign). Warren-Hoffman’s second notice for discovery and inspection “seeks information of a confidential and private nature that does not appear to be relevant to the issues in the case” (Saratoga Harness Racing, 274 AD2d at 889; see Hill v Troy Sav. Bank, 185 AD2d 423, 424 [1992]). Warren-Hoffman’s third notice for discovery and inspection not only seeks information of a confidential and private nature, but also is “so overly broad and burdensome as to be palpably improper” (Kern v City of Rochester, 261 AD2d 904, 905 [1999]). Thus, despite its failure to timely object to the third notice, American & Foreign is not barred from challenging its propriety (see id.). Present— Pigott, Jr., PJ., Green, Scudder, Gorski and Lawton, JJ.