| Ramirez v New York City Hous. Auth. |
| 2008 NY Slip Op 09468 [57 AD3d 231] |
| December 2, 2008 |
| Appellate Division, First Department |
| Sonia Ramirez, Individually and as Administratrix of the Estate ofDennis Ramirez, Deceased, Respondent, v New York City Housing Authority,Appellant, et al., Defendants. |
—[*1] Miller, Montiel & Strano, P.C., Roslyn Heights (David M. Strano of counsel), forrespondent.
Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered on or about October19, 2007, which, inter alia, directed defendant to produce documents and, insofar as appealedfrom, sua sponte directed that "affidavits on searches . . . comply with 'Lewis' case,"unanimously reversed, on the facts, without costs, and the quoted phrase deleted.
Unlike the situation in Lewis v Cityof New York (17 Misc 3d 559 [2007]), the record in this case does not show that theparty obligated to produce documents " 'has repeatedly failed to comply with discovery orders' "(id. at 564, quoting Figdor vCity of New York, 33 AD3d 560, 561 [2006]). Under the circumstances, it was animprovident exercise of discretion to impose the requirements of Lewis on defendant.Plaintiff's assertion that defendant, in fact, has failed to comply with discovery orders is based onmatters outside the record and therefore cannot be considered on appeal (see Walker v City of New York, 46AD3d 278, 282 [2007]; Scotto v Mei, 219 AD2d 181, 183-184 [1996]). However,we decline to strike plaintiff's entire brief. In light of our disposition of the appeal, we need notreach defendant's constitutional argument. Concur—Tom, J.P., Nardelli, McGuire, Acostaand DeGrasse, JJ.