Itzkoff v. Allstate Insurance

59 A.D.2d 854, 399 N.Y.S.2d 130, 1977 N.Y. App. Div. LEXIS 14009

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 10, 1977
• Status: Published

Opinion

Order of the Supreme Court, New York County, entered May 23, 1977, which granted defendant’s motion to vacate plaintiffs’ interrogatories and denied plaintiffs’ cross motion for an order compelling disclosure and awarding costs and reasonable attorneys’ fees, unanimously affirmed, without costs or disbursements, and without prejudice to service of a proper demand for interrogatories. Special Term correctly observed that many of the items requested were superfluous, irrelevant or call for conclusions and that plaintiff already possessed much of the information. Nevertheless, defendant has not furnished some data to which plaintiffs are entitled. In these circumstances, the suitable remedy "is not successive prunings of the demand by Special Term and this court by eliminating some items and portions of others, but rather a vacatur of the entire demand.” (Carroad v Regensburg, 17 AD2d 734.) The burden of serving a proper demand is upon counsel and not for the courts to correct a palpably bad one. (Heimowitz v Handler, Kleiman, Suzenik & Segal, P. C., 51 AD2d 702; Woodmere Academy v Steinberg, 51 AD2d 514; see, also, 3A Weinstein-Korn-Miller, NY Civ Prac, par 3133.02.) We are of the opinion that plaintiffs should not be barred from a further opportunity to obtain such information as is appropriate in these circumstances. Concur—Murphy, P. J., Birns, Evans and Capozzoli, JJ.