Recine v. City of New York

2017 NY Slip Op 8870, 156 A.D.3d 836, 65 N.Y.S.3d 788

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 20, 2017
• Docket: 2016-00880
• Status: Published

Opinion

In an action to recover damages for personal injuries and wrongful death, etc., the plaintiff appeals from an order of the Supreme Court, Queens County (Flug, J.), entered December 29, 2015, which denied her motion to compel the defendant City of New York to comply with her requests for discovery dated February 4, 2014, and February 12, 2015, respectively.

Ordered that the order is reversed, on the law, with costs, and the plaintiff’s motion to compel the defendant City of New York to comply with her requests for discovery dated February 4, 2014, and February 12, 2015, respectively, is granted.

A defendant’s failure to make a timely challenge to a plaintiff’s document demand pursuant to CPLR 3122 (a) (1) forecloses inquiry into the propriety of the information sought except with regard to material that is privileged pursuant to CPLR 3101 or requests that are palpably improper (see Giano v loannou, 78 AD3d 768 [2010]; During v City of New Rochelle, N.Y., 55 AD3d 533, 534 [2008]; Hunt v Odd Job Trading, 44 AD3d 714, 716 [2007]). Here, the defendant City of New York did not object to the plaintiff’s requests for discovery dated February 4, 2014, and February 12, 2015, respectively, within the required time period, and it failed to either asserted a valid privilege or establish that the demands were palpably improper.

Accordingly, the Supreme Court erred in denying the plaintiff’s motion to compel the City to comply with those requests for discovery.

Balkin, J.P., Leventhal, Austin and Ian-nacci, JJ., concur.