Duhe v. Midence

Appellate Division of the Supreme Court of New York

Duhe v. Midence

1 A.D.3d 279, 767 N.Y.S.2d 585, 2003 N.Y. App. Div. LEXIS 12582

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 25, 2003

StatusPublished

Cited by1 cases

This text of 1 A.D.3d 279 (Duhe v. Midence) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Duhe v. Midence, 1 A.D.3d 279, 767 N.Y.S.2d 585, 2003 N.Y. App. Div. LEXIS 12582 (N.Y. Ct. App. 2003).

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Opinion

Order, Supreme Court, New York County (Milton Tingling, J.), entered August 9, 2002, which, inter alia, denied, in part, plaintiffs’ motion seeking additional discovery, unanimously affirmed, without costs.

[280]*280Although defendants, individually, may, within the time prescribed by CPLR 3122, have failed to challenge the propriety of certain of the discovery requests, inquiry into the propriety of such discovery requests was not foreclosed, the requests having been palpably improper by reason of the irrelevance of the material sought (see Perez v Board of Educ. of City of N.Y., 271 AD2d 251 [2000]).

The motion court properly exercised its discretion in denying plaintiffs’ request for a specific deposition witness and allowing defendant Tri-State Newspaper Service, Inc. to produce a different additional witness in light of plaintiffs’ failure to demonstrate a substantial likelihood that the witness they desired to depose possessed information material and necessary to the prosecution of their case (see Saxe v City of New York, 250 AD2d 751 [1998]). The court properly precluded inquiry by plaintiffs at deposition into the negotiation and formation of the independent contract executed by the offending newspaper delivery driver with Tri-State. Plaintiffs made no showing that the integrated independent contract was ambiguous so as to render extrinsic evidence relevant upon the issue of the contracting parties’ intent (see generally A.H.A. Gen. Constr. v New York City Hous. Auth., 92 NY2d 20, 33 [1998]). Discovery of certain documents sought by plaintiffs to support their conjecture that liability may be established based on an alter ego theory was properly denied (see e.g. New Haven Props. v Grinberg, 293 AD2d 386 [2002]), particularly since the integrated agreements between the various defendants render such a theory legally insufficient. We note that the court granted plaintiffs’ request for a copy of the City and Suburban contract. We have considered plaintiffs’ remaining arguments and find them unavailing. Concur—Buckley, RJ., Tom, Ellerin and Gonzalez, JJ.

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Order, Supreme Court, New York County (Milton Tingling, J.), entered August 9, 2002, which, inter alia, denied, in part, plaintiffs’ motion seeking additional discovery, unanimously affirmed, without costs.

[280]*280Although defendants, individually, may, within the time prescribed by CPLR 3122, have failed to challenge the propriety of certain of the discovery requests, inquiry into the propriety of such discovery requests was not foreclosed, the requests having been palpably improper by reason of the irrelevance of the material sought (see Perez v Board of Educ. of City of N.Y., 271 AD2d 251 [2000]).

The motion court properly exercised its discretion in denying plaintiffs’ request for a specific deposition witness and allowing defendant Tri-State Newspaper Service, Inc. to produce a different additional witness in light of plaintiffs’ failure to demonstrate a substantial likelihood that the witness they desired to depose possessed information material and necessary to the prosecution of their case (see Saxe v City of New York, 250 AD2d 751 [1998]). The court properly precluded inquiry by plaintiffs at deposition into the negotiation and formation of the independent contract executed by the offending newspaper delivery driver with Tri-State. Plaintiffs made no showing that the integrated independent contract was ambiguous so as to render extrinsic evidence relevant upon the issue of the contracting parties’ intent (see generally A.H.A. Gen. Constr. v New York City Hous. Auth., 92 NY2d 20, 33 [1998]). Discovery of certain documents sought by plaintiffs to support their conjecture that liability may be established based on an alter ego theory was properly denied (see e.g. New Haven Props. v Grinberg, 293 AD2d 386 [2002]), particularly since the integrated agreements between the various defendants render such a theory legally insufficient. We note that the court granted plaintiffs’ request for a copy of the City and Suburban contract. We have considered plaintiffs’ remaining arguments and find them unavailing. Concur—Buckley, RJ., Tom, Ellerin and Gonzalez, JJ.

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Bluebook (online)

1 A.D.3d 279, 767 N.Y.S.2d 585, 2003 N.Y. App. Div. LEXIS 12582, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duhe-v-midence-nyappdiv-2003.

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