Salwen Paper Co. v. Lynch

Appellate Division of the Supreme Court of New York

Salwen Paper Co. v. Lynch

110 A.D.2d 895, 488 N.Y.S.2d 447, 1985 N.Y. App. Div. LEXIS 48799

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 29, 1985

StatusPublished

Cited by2 cases

This text of 110 A.D.2d 895 (Salwen Paper Co. v. Lynch) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Salwen Paper Co. v. Lynch, 110 A.D.2d 895, 488 N.Y.S.2d 447, 1985 N.Y. App. Div. LEXIS 48799 (N.Y. Ct. App. 1985).

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Opinion

[896]*896Discovery had not been completed since plaintiff had not answered defendant’s interrogatories or complied with its notice to produce. Therefore, the action was not ready for trial and plaintiff’s note of issue and statement of readiness should have been vacated and the action should have been stricken from the Trial Calendar (22 NYCRR 675.4; Smart v Conklin Brass & Copper Co., 96 AD2d 591; Najjar v National Kinney Corp., 89 AD2d 845). Under the circumstances, neither dismissal nor an award of counsel fees was warranted, but it was an appropriate exercise of Special Term’s discretion to order plaintiff to comply with the outstanding discovery requests (CPLR 3126; Goldner v Lendor Structures, 29 AD2d 978). Special Term erred, however, in providing plaintiff the option of contesting the discovery requests. Having failed to timely object (CPLR 3122, 3133), plaintiff is now foreclosed from so doing because the disclosure requests were not “palpably improper” (Zambelis v Nicholas, 92 AD2d 936), and plaintiff has made no claim that the evidence, sought to be discovered is privileged under CPLR 3101 (Coffey v Orbachs, Inc., 22 AD2d 317; Blessin v Greenberg, 89 AD2d 862). Lazer, J. P., O’Connor, Weinstein and Brown, JJ., concur.

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[896]*896Discovery had not been completed since plaintiff had not answered defendant’s interrogatories or complied with its notice to produce. Therefore, the action was not ready for trial and plaintiff’s note of issue and statement of readiness should have been vacated and the action should have been stricken from the Trial Calendar (22 NYCRR 675.4; Smart v Conklin Brass & Copper Co., 96 AD2d 591; Najjar v National Kinney Corp., 89 AD2d 845). Under the circumstances, neither dismissal nor an award of counsel fees was warranted, but it was an appropriate exercise of Special Term’s discretion to order plaintiff to comply with the outstanding discovery requests (CPLR 3126; Goldner v Lendor Structures, 29 AD2d 978). Special Term erred, however, in providing plaintiff the option of contesting the discovery requests. Having failed to timely object (CPLR 3122, 3133), plaintiff is now foreclosed from so doing because the disclosure requests were not “palpably improper” (Zambelis v Nicholas, 92 AD2d 936), and plaintiff has made no claim that the evidence, sought to be discovered is privileged under CPLR 3101 (Coffey v Orbachs, Inc., 22 AD2d 317; Blessin v Greenberg, 89 AD2d 862). Lazer, J. P., O’Connor, Weinstein and Brown, JJ., concur.

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Bluebook (online)

110 A.D.2d 895, 488 N.Y.S.2d 447, 1985 N.Y. App. Div. LEXIS 48799, Counsel Stack Legal Research, https://law.counselstack.com/opinion/salwen-paper-co-v-lynch-nyappdiv-1985.

Opinion

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