| Gottfried v Maizel |
| 2009 NY Slip Op 09619 [68 AD3d 1060] |
| December 22, 2009 |
| Appellate Division, Second Department |
| David Gottfried, Appellant, v Barry Maizel,Respondent. |
—[*1] Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains, N.Y. (Edward J. Guardaro,Jr., and Adonaid Casado Medina of counsel), for respondent.
In an action to recover damages for wrongful death, etc., the plaintiff appeals from so muchof an order of the Supreme Court, Kings County (Held, J.), dated July 18, 2008, as denied, inpart, his motion to compel discovery.
Ordered that the order is affirmed insofar as appealed from, with costs.
Under the circumstances of this case, the Supreme Court did not improvidently exercise itsdiscretion in only partially granting the plaintiff's motion to compel disclosure. The defendantcould not be compelled to produce records, documents, or information that were not in hispossession, or did not exist (see Argo v Queens Surface Corp., 58 AD3d 656 [2009];Maffai v County of Suffolk, 36 AD3d 765 [2007]; Sagiv v Gamache, 26 AD3d368, 369 [2006]), or that were privileged (see Logue v Velez, 92 NY2d 13 [1998]).Contrary to the plaintiff's arguments, the preliminary conference order dated February 13, 2008did not preclude the court from reviewing the propriety of his discovery demands or theadequacy of the defendant's response to those demands. Rivera, J.P., Covello, Angiolillo,Leventhal and Roman, JJ., concur.