| H.R. Prince, Inc. v Elite Envtl. Sys., Inc. |
| 2013 NY Slip Op 04576 [107 AD3d 850] |
| June 19, 2013 |
| Appellate Division, Second Department |
| H.R. Prince, Inc., Respondent, v EliteEnvironmental System, Inc., et al., Appellants. |
—[*1] Law Firm of Elias C. Schwartz, PLLC, Great Neck, N.Y. (Elizabeth Hoffmann ofcounsel), for respondent.
In an action to recover damages for breach of contract, the defendants appeal, aslimited by their brief, from so much of an order of the Supreme Court, Suffolk County(Whelan, J.), dated December 7, 2011, as denied that branch of their motion which wasto compel the plaintiff to provide unredacted phone records, and granted that branch ofthe plaintiff's cross motion which was pursuant to CPLR 3126 to preclude the defendantsfrom presenting certain evidence at trial.
Ordered that the order is affirmed insofar as appealed from, with costs.
Although CPLR 3101 (a) is to be construed liberally so that there should bedisclosure of any evidence that is material, necessary and arguably relevant (see Allenv Crowell-Collier Publ. Co., 21 NY2d 403, 406-407 [1968]; Lentz v Nic's Gym Inc., 76AD3d 998, 998 [2010]; Foster v Herbert Slepoy Corp., 74 AD3d 1139, 1140[2010]; Shanahan v Bambino, 271 AD2d 519 [2000]), " 'unlimited disclosure isnot required, and supervision of disclosure is generally left to the trial court's broaddiscretion' " (Palermo Mason Constr. v Aark Holding Corp., 300 AD2d 460, 461[2002], quoting Blagrove v Cox, 294 AD2d 526, 526 [2002]; see Arpino v F.J.F. & Sons Elec.Co., Inc., 102 AD3d 201, 209 [2012]; Spodek v Neiss, 70 AD3d 810, 810 [2010]; Reilly Green Mtn. Platform Tennisv Cortese, 59 AD3d 694, 695 [2009]; Cabellero v City of New York, 48 AD3d 727, 728 [2008]).The Supreme Court's determination as to discovery issues will not be disturbed on appealunless improvidently made (see Foster v Herbert Slepoy Corp., 74 AD3d at1140; Casabona v HuntingtonUnion Free School Dist., 29 AD3d 723, 723 [2006]). The test to be employedby the Supreme Court when determining discovery issues is one based on usefulness andreason (see Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 746 [2000];Allen v Crowell-Collier Publ. Co., 21 NY2d at 406). However, discoverydemands which are unduly burdensome, lack specificity, or seek privileged and/orirrelevant information are improper and will be vacated (see Board of Mgrs. of the ParkRegent Condominium v Park Regent Assoc., 78 AD3d 752, 753 [2010]; Bell v Cobble Hill Health Ctr.,Inc., 22 AD3d 620, 621 [2005]; Lopez v Huntington Autohaus, 150AD2d 351, 352 [1989]).
Here, the defendants failed to demonstrate that the unredacted telephone records ofthe plaintiff that they demanded were either material or relevant to the case, or wouldlead to possibly relevant evidence. Thus, the Supreme Court providently exercised itsdiscretion in denying that branch of the defendants' motion which was to compel theplaintiff to produce those records.[*2]
"The failure to comply with deadlines andprovide good-faith responses to discovery demands 'impairs the efficient functioning ofthe courts and the adjudication of claims' " (Arpino v F.J.F. & Sons Elec. Co.,Inc., 102 AD3d at 207, quoting Gibbs v St. Barnabas Hosp., 16 NY3d 74, 81 [2010]). Thenature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within thesound discretion of the trial court (see CPLR 3126 [3]; Kihl v Pfeffer, 94NY2d 118, 122-123 [1999]; Bernal v Singh, 72 AD3d 716, 717 [2010]; Pirro Group, LLC v One Point St.,Inc., 71 AD3d 654, 655 [2010]; Greene v Mullen, 70 AD3d 996, 996 [2010]; Dank v Sears Holding Mgt.Corp., 69 AD3d 557, 557 [2010]). Here, the plaintiff made a clear showing thatthe defendants failed to comply with the compliance conference order dated April 26,2011, which required them to respond to certain requests made in the plaintiff'ssupplemental notice of demand for production of documents dated March 2, 2011, sincethe defendants did not provide meaningful responses to those demands (seeCPLR 3126 [3]; Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d at 211;Pirro Group, LLC v One Point St., Inc., 71 AD3d at 655). Further, thedefendants' willful and contumacious conduct in failing to meaningfully respond to thosedemands was reasonably inferred from the defendants' repeated failures to respond to theplaintiff's demands and the court's compliance conference order without a reasonableexcuse (see Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d at 211; PirroGroup, LLC v One Point St., Inc., 71 AD3d at 655; Dank v Sears Holding Mgt.Corp., 69 AD3d at 557; Workman v Town of Southampton, 69 AD3d 619, 620[2010]). Accordingly, the Supreme Court providently exercised its discretion in grantingthat branch of the plaintiff's cross motion which was pursuant to CPLR 3126 to precludethe defendants from presenting evidence at trial with respect to those items sought in theplaintiff's supplemental notice of demand for production of documents dated March 2,2011, which were delineated in the plaintiff's "notice of preclusion" dated December 12,2011. Dillon, J.P., Chambers, Austin and Hinds-Radix, JJ., concur.