| During v City of New Rochelle, N.Y. |
| 2008 NY Slip Op 07613 [55 AD3d 533] |
| October 7, 2008 |
| Appellate Division, Second Department |
| Dennis C. During et al., Appellants, v City of New Rochelle,New York, Respondent. |
—[*1] Zarin & Steinmetz, White Plains, N.Y. (David S. Steinmetz and Marsha Rubin Goldstein ofcounsel), and Bernis Shapiro, Corporation Counsel, New Rochelle, N.Y. (Kathleen Gill of counsel),for respondent (one brief filed). Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, N.Y. (Mark H. Alcott, Daniel H. Levi, and Daniel S.Kirschbaum of counsel), for Dog Federation of New York, amicus curiae.
In an action, inter alia, for a judgment declaring that Local City Ordinance 21-2007 of the City ofNew Rochelle is unconstitutional and in violation of state law, the plaintiffs appeal, as limited by theirbrief, from so much of an order and judgment (one paper) of the Supreme Court, Westchester County(Donovan, J.), dated September 10, 2007, as denied those branches of their motion which were tocompel certain discovery and, sua sponte, dismissed the complaint for failure to state a cause of action.
Ordered that the order and judgment is modified, on the law, (1) by deleting the provision thereofsua sponte dismissing the complaint, and (2) by deleting the provision thereof denying those branches ofthe plaintiffs' motion which were to compel discovery of document requests 6, 7, 15, 16, and 21 andsubstituting therefor a provision granting those branches of the motion only to the extent that thosedocument requests pertain to the calculation of the costs of administering Local City Ordinance21-2007 of the City of New Rochelle incurred by the municipality; as so modified, the order andjudgment is affirmed insofar as appealed from, with costs to the plaintiffs, the complaint is reinstated,and the matter is remitted to the Supreme Court, Westchester County, for further proceedings on thecomplaint.[*2]
In the absence of notice to the parties and an application by thedefendant for such relief, it was error for the Supreme Court to, sua sponte, dismiss the complaint (see Abinanti v Pascale, 41 AD3d 395,396 [2007]; Jacobs v Mostow, 23AD3d 623, 623-624 [2005]; Gibbs v Kinsey, 120 AD2d 701 [1986]).
The Supreme Court also erred in part in denying those branches of the plaintiffs' motion whichwere to compel the discovery of document requests 6, 7, 15, 16, and 21. The defendant's failure tomake a timely challenge to the plaintiffs' first set of document requests "forecloses inquiry into thepropriety of the information sought except with regard to material that is privileged pursuant to CPLR3101 or requests that are palpably improper" (Hunt v Odd Job Trading, 44 AD3d 714, 716 [2007], quoting Garciav Jomber Realty, 264 AD2d 809, 810 [1999]). Although disclosure of the motivation for enactinglegislation should be precluded, pretrial discovery as to the circumstances surrounding the enactment islegitimate (see D & S Realty Dev., LP vTown of Huntington, 22 AD3d 455 [2005]; Consolidated Petroleum Term. vIncorporated Vil. of Port Jefferson, 75 AD2d 611, 612 [1980]). Moreover, a document requestwill be found proper as long as it is sufficiently specific to apprise the defendant of the category ofdocuments which must be produced and is relevant to the plaintiff's cause of action (see Fausto v City of New York, 17 AD3d520, 522 [2005]; Stevens v Metropolitan Suburban Bus Auth., 117 AD2d 733, 734[1986]).
Here, the plaintiffs' document requests 6, 7, 15, 16, and 21 do not require disclosure of the motivesfor enacting the ordinance at issue. Moreover, document requests 6, 7, 15, 16, and 21 are clearlyrelevant to the plaintiffs' claims insofar as they pertain to the calculation of the costs of administeringLocal City Ordinance 21-2007 of the City of New Rochelle incurred by the municipality.
Motion by the respondent on an appeal from an order and judgment (one paper) of the SupremeCourt, Westchester County, dated September 10, 2007, inter alia, to dismiss the appeal. By decisionand order on motion of this Court dated March 20, 2008 [2008 NY Slip Op 67127(U)], that branchof the motion which was to dismiss the appeal was held in abeyance and referred to the Justices hearingthe appeal for determination upon the argument or submission of the appeal.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon theargument of the appeal, it is[*3]
Ordered that the branch of the motion which is to dismiss theappeal is denied. Mastro, J.P., Lifson, Carni and Eng, JJ., concur.