| Blair v Otto Brehm, Inc. |
| 2008 NY Slip Op 06786 [54 AD3d 702] |
| September 9, 2008 |
| Appellate Division, Second Department |
| Geraldine Blair et al., Respondents, v Otto Brehm, Inc.,Appellant. |
—[*1] Schuman Sall & Geist, White Plains, N.Y. (Eliot M. Schuman and Gerald K. Geist ofcounsel), for respondents.
In an action to recover damages for breach of two employment agreements, the defendantappeals from an order of the Supreme Court, Westchester County (Bellantoni, J.), entered June27, 2007, which denied its motion to compel the plaintiffs to provide evidence regardingmitigation of damages pursuant to CPLR 3124 and for sanctions pursuant to CPLR 3126, grantedthe plaintiffs' cross motion for a protective order preventing the defendant from discoveringevidence related to mitigation of damages, granted the plaintiffs' motion for leave to amend thecomplaint, and denied its cross motion for summary judgment dismissing the complaint.
Ordered that the order is modified, on the law, by deleting the provision thereof granting theplaintiffs' cross motion for a protective order and substituting therefor a provision denying thatcross motion; as so modified, the order is affirmed, without costs or disbursements.
The defendant failed to submit evidence in admissible form which demonstrated the absenceof any triable issues of fact regarding its claim that the plaintiffs failed to perform theirobligations pursuant to the subject employment agreements. The affirmation from the defendant'sattorney and supporting exhibits were insufficient to support its cross motion for summaryjudgment (see Menzel v Plotnick, 202 AD2d 558 [1994]; Simms v North Shore Univ.Hosp., 192 AD2d 700 [1993]). Accordingly, the defendant did not make a prima facieshowing that it was entitled to judgment as a matter of law and the Supreme Court properlydenied its cross motion therefor (seegenerally South Nassau Communities Hosp. v Allstate Ins. Co., 12 AD3d 357 [2004]).[*2]
However, the court erred in granting the plaintiffs' crossmotion for a protective order preventing the defendant from obtaining discovery on the issue ofmitigation of damages. CPLR 3101 (a) provides that there "shall be full disclosure of all mattermaterial and necessary in the prosecution . . . of an action" (see Allen vCrowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). The issue of mitigation of damageswas material and thus the defendant is entitled to discovery on the issue.
The defendant's remaining contentions are without merit. Rivera, J.P., Lifson, Santucci andMiller, JJ., concur.