In re U. S. Pioneer Electronics Corp.

393 N.E.2d 478, 47 N.Y.2d 914, 419 N.Y.S.2d 484, 1979 N.Y. LEXIS 2172

Opinion

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, in éach case.

Petitioner has commenced an action in Ohio against a chain of retail hi-fidelity dealers for violations of that State’s Deceptive Trade Practices Act, unfair competition and breach of contract. In aid of that action petitioner seeks the production of documents and the testimony of the sales managers or other appropriate officers or employees of the two corporate respondents as nonparty witnesses. In the Nikko proceeding Supreme Court, Nassau County, vacated a prior ex parte order directing discovery; in Hotel Supreme Court, Westchester County, ordered the requested discovery. On appeal the Appellate Division, "on the law and as a matter of discretion in the interest of justice” in each case, directed parallel discovery to the extent and on the terms particularized in the court’s decisions. It concluded, "[a]s thus limited, petitioner will be able to achieve the disclosure to which it has demonstrated its entitlement, without simultaneously causing undue and unreasonable annoyance, disadvantage or other prejudice to the nonparty witness being examined.” Petitioner now appeals to our court from these two orders.

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The determination as to the terms and provisions of discovery as regulated to prevent abuse by protective orders under CPLR 3103 (subd [a]) rests in the sound discretion of the court to which application is made, subject to review by the intermediate appellate court, here the Appellate Division. Our court will not disturb the determinations made by that court in the absence of a demonstration that as a matter of law there has been an abuse of discretion. (3A Weinstein-KornMiller, NY Civ Prac, par 3103.01.) No such demonstration has been made in either of these cases.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur in memorandum.

In each case: Order affirmed.

Respondent Nikko’s motion to dismiss the appeal in its case was denied on April 3, 1979.