Scheinfeld v. Burlant

98 A.D.2d 603, 469 N.Y.S.2d 335, 1983 N.Y. App. Div. LEXIS 20884

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 1, 1983
• Status: Published

Opinions

Order of the Supreme Court, New York County (Alvin F. Klein, J.), entered March 25,1983, denying defendants’ motion for a protective order and directing them to produce the documents demanded affirmed, with costs. This action is bottomed on the claim of a breach of fiduciary relationship by defendants. Plaintiffs contend that they entered into an investment scheme pursuant to which they delivered funds to defendants. The money was to be turned over to North Broadway Funding Corp., to be secured by an assignment of a mortgage on real property owned by North Broadway. Defendants were to hold this assignment in escrow and, in the event of default, to turn it over to plaintiffs. North Broadway paid interest on the loans until June, 1977, at which time it defaulted. Plaintiffs then demanded that defendants produce the assignment and mortgage instrument which, purportedly, they were holding in escrow for the benefit of plaintiffs. When defendants failed to do so this action was instituted. By notice dated December 17,1982, plaintiffs demanded production of certain documents. Defendants moved for a protective order upon the ground that the notice was extraordinarily broad and lacked specificity. Special Term denied the motion and directed production of the documents demanded. The crux of defendants’ argument is that the items sought begin with the phrases “All correspondence and/or memoranda”, “All documents and memoranda”, “All notes, memoranda and/or documents”, “Any and all other documents” or “All financial records and documents”. This, it is contended, violates the strictures imposed by us in Rios v Donovan (21 AD2d 409) and its progeny. However, examination of the items sought makes evident the limited and specific subject matter to which each separate demand is directed. To hold that the items lack specificity simply because they start with the word “All”, would be to exalt form over substance and to frustrate the liberal discovery provisions which CPLR article 31 was designed to accomplish. We are of the opinion that the documents are sufficiently described so that defendants may readily understand what it is they are required to produce. No claim is made that they are not material and necessary to the litigation. In these circumstances, it was a proper exercise of discretion for Special Term to require that they be produced. Concur — Kupferman, J. P., Sullivan and Bloom, JJ. Silverman and Alexander, JJ., dissent in separate memoranda as follows: