Grems v. City of Oneida

206 A.D.2d 732, 614 N.Y.S.2d 942, 1994 N.Y. App. Div. LEXIS 7541

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 21, 1994
• Status: Published

Opinion

Mikoll, J. P.

Appeals (1) from an order of the Supreme Court (Tait, Jr., J.), entered November 13, 1993, in Madison County, which granted plaintiffs’ motion to compel the production of documents, and (2) from an order of said court, entered December 30, 1993 in Madison County, which denied defendant Ford Motor Company’s motion for renewal.

Defendant Ford Motor Company agreed to respond to plaintiffs’ interrogatories upon plaintiffs’ service of an earlier order to disclose, never moved pursuant to CPLR 3133 to strike any of plaintiffs’ demands and never denied possession, custody, control or availability of the sought-after documents. Accordingly, Supreme Court properly ruled that Ford had waived the right to object and granted plaintiffs’ second motion to compel production of documents (see, CPLR 3133 [a]).

Ford’s failure to move to strike the interrogatories foreclosed inquiry into the propriety of the information sought (see, County of Chemung v Fenwal, Inc., 111 AD2d 551, 552; Long Is. Region Natl. Assn. for Advancement of Colored People v Town of N. Hempstead, 94 AD2d 789). The grant or denial of discovery is a discretionary matter which will not be interfered with absent abuse of that discretion. Finding no abuse, Supreme Court’s order granting plaintiffs’ motion is deemed proper. We also find no basis to disturb Supreme Court’s order denying Ford’s renewal motion.

Crew III, White, Weiss and Yesawich Jr., JJ., concur. Ordered that the orders are affirmed, with costs.