Passaro v. Passaro

120 A.D.2d 658, 502 N.Y.S.2d 253, 1986 N.Y. App. Div. LEXIS 56758

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 19, 1986
• Status: Published

Opinion

— In an action to recover on a promissory note, the plaintiff appeals from an order of the Supreme Court, Queens County (Hyman, J.), dated September 5, 1985, which granted the defendant’s motion for a protective order vacating the plaintiff’s notice for discovery and inspection, dated August 2, 1985, and imposed "$40.00 costs and sanctions of $1,000.00 to be paid by the plaintiff’s counsel to the defendant’s counsel.”

Order modified, by adding a provision that the vacatur of the notice for discovery and inspection is without prejudice to the plaintiff’s service of an appropriate notice for discovery and inspection after the pretrial deposition of the defendant, and by deleting the provision imposing sanctions of $1,000 to be paid by the plaintiff’s counsel to the defendant’s counsel. As so modified, order affirmed, without costs or disbursements.

Under the circumstances, Special Term did not abuse its discretion by granting the defendant’s motion for a protective order vacating the plaintiff’s notice for discovery and inspection dated August 2, 1985. However, such a vacatur should be without prejudice to the plaintiff serving an appropriate notice for discovery and inspection, after the pretrial deposition of the defendant (see, Ganin v Janow, 86 AD2d 857, 858; Rios v Donovan, 21 AD2d 409). Moreover, at the pretrial deposition of the defendant, the plaintiff may renew his request for exemplars of the defendant’s handwriting, which the plaintiff is entitled to in light of the defendant’s affirmative defense of forgery (see, Great Am. Ins. Co. v Giardino, 71 AD2d 836; Rosenblatt v Danzis, 55 Misc 2d 528; Venable v Brockett, 69 Misc 2d 726). There is no merit to the defendant’s contention that such exemplars constitute material prepared for litigation, which would be qualifiedly protected from disclosure pursuant to CPLR 3101 (d) (2) (see, Rosenblatt v Danzis, supra).

Finally, the imposition of "sanctions of $1,000” was inappropriate under the circumstances. Lazer, J. P., Bracken, Brown, Lawrence and Kooper, JJ., concur.