Wilcox v. County of Onondaga

Appellate Division of the Supreme Court of New York

Wilcox v. County of Onondaga

132 A.D.2d 984, 518 N.Y.S.2d 514, 1987 N.Y. App. Div. LEXIS 49458

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

DecidedJuly 10, 1987

StatusPublished

Cited by6 cases

This text of 132 A.D.2d 984 (Wilcox v. County of Onondaga) 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

Wilcox v. County of Onondaga, 132 A.D.2d 984, 518 N.Y.S.2d 514, 1987 N.Y. App. Div. LEXIS 49458 (N.Y. Ct. App. 1987).

Pincite

Opinion

Order unanimously modified on the law and in the exercise of discretion and as modified affirmed without costs, in accordance with the following memorandum: American Motors Corporation (AMC) has forfeited its right to challenge the June 11, 1985 order by failing to appeal therefrom. Resettlement was inappropriate as it is available only to correct errors in form, or for clarification, but cannot be used to effect substantial changes (Foley v Roche, 68 AD2d 558). In August 1985, AMC could object only to demands in the August notice to produce not covered by the June order, i.e., demands regarding similar vehicles. We find that the new [985]*985demands regarding similar vehicles are overbroad because plaintiff has not provided any factual basis for them (cf, Harmon v Ford Motor Co., 89 AD2d 800; Johantgen v Hobart Mfg. Co., 64 AD2d 858; see also, Valet v American Motors, 105 AD2d 645). Therefore, AMC’s motion for a protective order striking those demands should have been granted. Decretal paragraphs (a) through (g) of Special Term’s order dated February 18, 1986 must be modified by substituting the term "the 1980 Model CJ5 AMC Jeep vehicle which is the subject of this litigation” for the language "the CJ-5 Jeep, or similar vehicle, which is the subject of this litigation.” In addition, the order must be modified by striking any reference to the period of 1970 to the date of the accident since only information relating to the 1980 model was ordered in the March notice.

The February order is modified, further, to provide that production must occur within 30 days after service of the order to be entered hereon.

We have examined the remaining issues raised by AMC and find them to be without merit. (Appeal from order of Supreme Court, Onondaga County, Balio, J.—protective order.) Present —Callahan, J. P., Doerr, Green, Pine and Lawton, JJ.

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Order unanimously modified on the law and in the exercise of discretion and as modified affirmed without costs, in accordance with the following memorandum: American Motors Corporation (AMC) has forfeited its right to challenge the June 11, 1985 order by failing to appeal therefrom. Resettlement was inappropriate as it is available only to correct errors in form, or for clarification, but cannot be used to effect substantial changes (Foley v Roche, 68 AD2d 558). In August 1985, AMC could object only to demands in the August notice to produce not covered by the June order, i.e., demands regarding similar vehicles. We find that the new [985]*985demands regarding similar vehicles are overbroad because plaintiff has not provided any factual basis for them (cf, Harmon v Ford Motor Co., 89 AD2d 800; Johantgen v Hobart Mfg. Co., 64 AD2d 858; see also, Valet v American Motors, 105 AD2d 645). Therefore, AMC’s motion for a protective order striking those demands should have been granted. Decretal paragraphs (a) through (g) of Special Term’s order dated February 18, 1986 must be modified by substituting the term "the 1980 Model CJ5 AMC Jeep vehicle which is the subject of this litigation” for the language "the CJ-5 Jeep, or similar vehicle, which is the subject of this litigation.” In addition, the order must be modified by striking any reference to the period of 1970 to the date of the accident since only information relating to the 1980 model was ordered in the March notice.

The February order is modified, further, to provide that production must occur within 30 days after service of the order to be entered hereon.

We have examined the remaining issues raised by AMC and find them to be without merit. (Appeal from order of Supreme Court, Onondaga County, Balio, J.—protective order.) Present —Callahan, J. P., Doerr, Green, Pine and Lawton, JJ.

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132 A.D.2d 984, 518 N.Y.S.2d 514, 1987 N.Y. App. Div. LEXIS 49458, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilcox-v-county-of-onondaga-nyappdiv-1987.

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