Hartigan v. Acme Markets, Inc.

95 A.D.2d 824, 464 N.Y.S.2d 376, 1983 N.Y. App. Div. LEXIS 18758

Opinion

— In an action to recover gas utility charges due under a lease, defendant appeals from an order of the Supreme Court, Richmond County (Hurowitz, J.), dated June 22,1982, which denied its motion for a protective order. Order modified, by adding to the decretal paragraph thereof following the word “is” the words “granted to the extent of vacating plaintiff’s notice to produce dated February 9, 1982, and is otherwise”. As so modified, order affirmed, without costs or disbursements. Inasmuch as almost none of the items sought in plaintiff’s notice to produce is identified with the particularity required by CPLR 3120 (subd [a], par 1, cl [i]) (Ganin v Janow, 86 AD2d 857, 858), this court will not attempt to “prune” plaintiff’s list but will instead strike the entire notice (cf. Carroad v Regensburg, 17 AD2d 734). Plaintiff’s notice for discovery and inspection of defendant’s premises, however, was proper under CPLR 3120 (subd La], par 1, cl [ii]). Gulotta, J. P., O’Connor, Weinstein and Rubin, JJ., concur.