Metropolitan Marking Corp. v. Basso

118 A.D.2d 835, 500 N.Y.S.2d 319, 1986 N.Y. App. Div. LEXIS 54687

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 31, 1986
• Status: Published

Opinion

— In an action, inter alia, for a permanent injunction, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (CÍirist, J.), dated July 15, 1985, as denied its motion for renewal of a prior motion to compel discovery and for joinder of an additional party defendant.

Order reversed insofar as appealed from, without costs or disbursements, motion granted, and upon renewal, motion to compel discovery granted to the extent that the defendants are directed to produce copies of the defendant Sten-Rite Industries’s books and records, with only information as to noncustomers of the plaintiff redacted, and the plaintiff is granted leave to serve a supplemental summons and amended complaint upon the additional party defendant Josephine Krakaur. The defendants’ time to produce the books and records is extended until 30 days after service upon them of a copy of the order to be made hereon, with notice of entry.

Newly discovered evidence showed that the list of mutual customers provided by the defendants in satisfaction of a discovery stipulation was incomplete; under such circumstances, the court erred in denying the plaintiff’s properly made motion to renew a prior motion to compel discovery (see, Brann v City of New York, 96 AD2d 923). In light of the new evidence, that branch of the renewed motion which was to compel discovery should have been granted; it was demonstrated that the defendants had not completely complied with the parties’ discovery stipulation.

Moreover, that branch of the plaintiff’s renewed motion which was to join an additional defendant should have been granted in the exercise of the court’s discretion. Lazer, J. P., Bracken, Brown and Kooper, JJ., concur.