Rufer v. New York State Teachers Ass'n

42 A.D.2d 1040, 348 N.Y.S.2d 273, 1973 N.Y. App. Div. LEXIS 3303

Opinion

Order unanimously modified in accordance with Memorandum and, as modified, affirmed, without costs. Memorandum: Plaintiff sought by deposition, pursuant to CPLR 3107, to examine the defendant corporation’s president, secretary and chairman of the board of directors. Plaintiff also sought, pursuant to CPLR 3111, to require said officers to produce numerous itemized minutes, notices, reports, correspondence, financial records, vouchers, canceled checks, auditors’ statements, contracts and other items, many of them extending over a three-year period. A notice to take a deposition of a corporate party may not specify the individuals by which the party is to be examined (SCM Corp. v. Buehler, 33 A D 2d 514) and initially it is for the corporation to decide the person by whom it will be examined (Kenford Co. v. County of Erie, 41 A D 2d 587; Besen v. C.P.L. Yacht Sales, 34 A D 2d 789). Accordingly, the protective order herein should have eliminated from plaintiff’s notice not only the chairman of the board of directors as it so provided but also the other named officers. The order should also be modified to eliminate the requirement that defendant produce at the examination all of the documents demanded by plaintiff. The appropriate scope of discovery is measured by usefulness and reason (Allen v. Crowell-Collier Pub. Co., 21 N Y 2d 403, 406-407). Particular items should not be sought until they can be “specified with reasonable particularity” as provided by CPLR 3120 (subd. [a], par. 1, el. [i]) and such broad demands are inappropriate for discovery under CPLR 3111 (Columbia Gas of N. Y. v. New York State Elec. & Gas Corp., 35 A D 2d 620; Kimberly-Clark Corp. v. Power Auth., 28 A D 2d 820; Rios v. Donovan, 21 A D 2d 409). (Appeal from part of order of Monroe Special Term denying motion for a protective order.) Present — Goldman, P. J., Del Vecchio, Witmer, Moule and Henry, JJ.