J & E Productions, Inc. v. Lavenson

49 A.D.2d 528, 370 N.Y.S.2d 102, 1975 N.Y. App. Div. LEXIS 10373

Opinion

Order, Supreme Court, New York County, entered on October 8, 1974, granting plaintiffs motion for a protective order, affirmed. Respondent shall recover of appellants $40 costs and disbursements of this appeal. Concur—Stevens, P. J., Kupferman, Murphy and Tilzer, JJ.; Capozzoli, J., dissents in the following memorandum: Capozzoli, J. (dissenting). Simultaneously with the service of their answer herein defendants served a set of interrogatories. Thereafter, claiming the answers to the interrogatories to be deficient, they served a notice to take the plaintiffs oral deposition. CPLR 3102 specifically provides under the heading "Method of obtaining disclosure”, in subdivision (a), that "Information is obtainable by one or more of the following disclosure devices: depositions upon oral questions * * *, interrogatories” (emphasis added). The grounds specified in CPLR 3103 for a protective order have not been shown to exist, and, in fact, many of plaintiffs answers are deficient as to the information sought, indefinite and sometimes evasive. Special Term’s reliance on Katz v Posner (23 AD2d 774), is misplaced, for that court said (p 775), as follows: "If the device first chosen [interrogatories] does not adequately disclose all evidence material and necessary to the prosecution or defense of the action (CPLR 3101), then the other available remedy [oral deposition] may be utilized”.