| Rodriguez v Metropolitan Cable Communications |
| 2010 NY Slip Op 09242 [79 AD3d 841] |
| December 14, 2010 |
| Appellate Division, Second Department |
| David Rodriguez, Respondent, v Metropolitan CableCommunications, Appellant, and Time Warner Cable of New York City,Respondent. |
—[*1] Asher, Gaughran, LLP, Katonah, N.Y. (Rachel Asher of counsel), forplaintiff-respondent.
In a putative class action to recover damages for violations of Labor Law article 19, the defendantMetropolitan Cable Communications appeals from an order of the Supreme Court, Queens County(Lebowitz, J.), dated February 25, 2010, which denied its motion for a protective order striking certaininterrogatories and document requests.
Ordered that the order is modified, on the facts and in the exercise of discretion, (1) by deleting theprovision thereof denying that branch of the motion of the defendant Metropolitan CableCommunications which was for a protective order striking document request number 5 from theplaintiff's second request for the production of documents and substituting therefor a provision grantingthat branch of the motion, and (2) by deleting the provision thereof denying that branch of the motion ofthe defendant Metropolitan Cable Communications which was to strike interrogatory number 1 fromthe plaintiff's second set of interrogatories, and substituting therefor a provision granting that branch ofthe motion to the extent of deleting from that interrogatory the language, "or any position with similarduties and responsibilities as technician supervisors"; as so modified, the order is affirmed, without costsor disbursements.
CPLR 3101 (a) broadly mandates "full disclosure of all matter material and necessary in theprosecution or defense of an action." The appropriateness of a discovery demand is a matter addressedto the sound discretion of the trial court (see Andon v 302-304 Mott St. Assoc., 94 NY2d740, 747 [2000]; Wander v St. John'sUniv., 67 AD3d 904, 905 [2009]; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531 [2007]), and absent animprovident exercise of discretion, this Court generally will uphold a trial court's discoverydetermination (see Wander v St. John's Univ., 67 AD3d at 905; Gilman & Ciocia, Inc. v Walsh, 45 AD3d531 [2007]; see also Andon v 302-304 Mott St. Assoc., 94 NY2d at 747).
While class certification is an issue that should be determined promptly (see CPLR 902), atrial court has discretion to extend the deadline upon good cause shown (see CPLR 2004; Argento v Wal-Mart Stores, Inc., 66 AD3d930 [2009]), such as the plaintiff's need to conduct preclass certification discovery to determinewhether the prerequisites of a class action set forth in CPLR 901 (a) may be satisfied (see Fortune Limousine Serv., Inc. v NextelCommunications, 35 AD3d 350, 352 [2006]; Dunn v Consolidated Edison Co. ofN.Y., 74 AD2d 816, 816-817 [1980]; Galdamez v Biordi Constr. Corp., 50 AD3d 357, 358 [2008]; seegenerally Stern v Carter, 82 AD2d 321 [1981]). "The purpose of preclass certification discovery isto ascertain the dimensions of the group of individuals who share plaintiff's [*2]grievance" (Smith v Atlas Intl. Tours, 80 AD2d 762, 764[1981]; see Gewanter v Quaker State Oil Ref. Corp., 87 AD2d 970 [1982]).
Here, the Supreme Court providently exercised its discretion in denying those branches of themotion of the defendant Metropolitan Cable Communications (hereinafter Metro) which were for aprotective order striking interrogatories 10 and 11 from the plaintiff's second set of interrogatoriesserved upon Metro and document requests 1, 2, 3, 6, 7, 12, and 16 from the plaintiff's second requestfor the production of documents served upon Metro, as those discovery demands were appropriate inthe pre-certification stage of this putative class action (see Wander v St. John's Univ., 67AD3d at 905; Gilman & Ciocia, Inc. vWalsh, 45 AD3d 531 [2007]; Gewanter v Quaker State Oil Ref. Corp., 87 AD2d970 [1982]; Smith v Atlas Intl. Tours, 80 AD2d at 764).
However, to the extent that interrogatory number 1 in the plaintiff's second set of interrogatoriesserved upon Metro seeks information related to individuals who are outside the proposed class definedin the complaint, it is improper to require Metro to respond at this juncture since such informationcannot assist the plaintiff in "ascertain[ing] the dimensions of the group of individuals who share plaintiff'sgrievance" (Smith v Atlas Intl. Tours, 80 AD2d at 764; cf. Gewanter v Quaker State OilRef. Corp., 87 AD2d 970 [1982]). As we find the remaining portion of interrogatory 1 to beproper, we grant that branch of Metro's motion which was to strike this interrogatory only to the extentof deleting from it the language "or any position with similar duties and responsibilities as techniciansupervisors" (cf. Bell v Cobble Hill HealthCtr., Inc., 22 AD3d 620, 621 [2005]). Similarly, the Supreme Court should have granted thatbranch of Metro's motion which was for a protective order striking document request number 5 fromthe plaintiff's second request for the production of documents served upon Metro, as it is overbroad inseeking documents regarding Metro employees generally, not merely those who might fall within theproposed class defined in the complaint (cf. Gewanter v Quaker State Oil Ref. Corp., 87AD2d 970 [1982]; Smith v Atlas Intl. Tours, 80 AD2d at 764). Covello, J.P., Angiolillo,Dickerson and Belen, JJ., concur.