Ramirez v. New York City Housing Authority

57 A.D.3d 231, 868 N.Y.2d 65

Opinion

Unlike the situation in Lewis v City of New York (17 Misc 3d 559 [2007]), the record in this case does not show that the party obligated to produce documents “ ‘has repeatedly failed to comply with discovery orders’ ” (id. at 564, quoting Figdor v City of New York, 33 AD3d 560, 561 [2006]). Under the circumstances, it was an improvident exercise of discretion to impose the requirements of Lewis on defendant. Plaintiffs assertion that defendant, in fact, has failed to comply with discovery orders is based on matters outside the record and therefore cannot be considered on appeal (see Walker v City of New York, 46 AD3d 278, 282 [2007]; Scotto v Mei, 219 AD2d 181, 183-184 [1996]). However, we decline to strike plaintiffs entire brief. In light of our disposition of the appeal, we need not reach defendant’s constitutional argument. Concur — Tom, J.P., Nardelli, McGuire, Acosta and DeGrasse, JJ.