| Stepping Stones Assoc., L.P. v Scialdone |
| 2017 NY Slip Op 01726 [148 AD3d 855] |
| March 8, 2017 |
| Appellate Division, Second Department |
[*1]
| Stepping Stones Associates, L.P., et al.,Respondents, v Gregory P. Scialdone et al., Appellants. |
Gregory P. Scialdone, White Plains, NY (Theresa M. Gugliotta pro se of counsel), forappellant Theresa M. Gugliotta, and Theresa M. Gugliotta, White Plains, NY, for appellantGregory P. Scialdone (one brief filed).
Finger & Finger, a Professional Corporation, White Plains, NY (Kenneth J. Finger ofcounsel), for respondents.
In an action to recover damages for defamation, the defendants appeal, as limited by theirbrief, from (1) so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.),dated March 2, 2015, as granted that branch of the plaintiffs' cross motion which was to striketheir first demands for discovery, and as denied those branches of their motion which were tocompel the plaintiffs to respond to their first demands for discovery and for recusal, and (2) somuch of an order of the same court dated August 17, 2015, as denied that branch of their motionwhich was to compel the plaintiffs to respond to their second demands for discovery.
Ordered that the orders are affirmed insofar as appealed from, with costs.
CPLR 3101 (a) provides that "[t]here shall be full disclosure of all matter material andnecessary in the prosecution or defense of an action, regardless of the burden of proof." "Thephrase 'material and necessary' should be 'interpreted liberally to require disclosure, upon request,of any facts bearing on the controversy which will assist preparation for trial by sharpening theissues and reducing delay and prolixity. The test is one of usefulness and reason' " (Friel v Papa, 56 AD3d 607, 608[2008], quoting Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968])."However, the principle of 'full disclosure' does not give a party the right to uncontrolled andunfettered disclosure" (Gilman &Ciocia, Inc. v Walsh, 45 AD3d 531, 531 [2007]). " 'It is incumbent on the partyseeking disclosure to demonstrate that the method of discovery sought will result in thedisclosure of relevant evidence or is reasonably calculated to lead to the discovery of informationbearing on the claims' " (Vyas vCampbell, 4 AD3d 417, 418 [2004], quoting Crazytown Furniture v Brooklyn UnionGas Co., 150 AD2d 420, 421 [1989]). " 'The supervision of disclosure and thesetting of reasonable terms and conditions therefor rests within the sound discretion of the trialcourt and, absent an improvident exercise of that discretion, its determination will not bedisturbed' " (Berkowitz v 29Woodmere Blvd. Owners', Inc., 135 AD3d 798, 799 [2016], quoting Mattocks vWhite Motor Corp., 258 AD2d 628, 629 [1999]; see Scorzari v [*2]Pezza, 111 AD3d916, 916-917 [2013]).
Here, many of the 266 requests made in the defendants' first demands for discovery were ofan overbroad and burdensome nature, and were palpably improper. Under these circumstances,"the appropriate remedy is to vacate the entire demand rather than to prune it" (Berkowitz v29 Woodmere Blvd. Owners', Inc., 135 AD3d at 799; see Scorzari v Pezza, 111 AD3d 916 [2013]; Matter of Greenfield v Board ofAssessment Review for Town of Babylon, 106 AD3d 908, 909 [2013]). Therefore, eventhough some of the defendants' requests may have sought relevant information, the SupremeCourt providently exercised its discretion in granting the branch of the plaintiffs' cross motionwhich was to strike, in their entirety, the defendants' first demands for discovery, and denyingthat branch of the defendants' motion which was to compel the plaintiffs to respond to thosedemands.
The Supreme Court also providently exercised its discretion in denying that branch of thedefendants' motion which was to compel the plaintiffs to further respond to their second demandsfor discovery. The plaintiffs produced more than 500 pages of documents in response to thosedemands. The defendants' contention that the plaintiffs' responses were "patently and completelyinadequate and deficient and were a sham" was not supported by any showing that the documentsproduced were inadequate, or argument as to what documents or type of documents the plaintiffsshould have produced in response.
The Supreme Court also providently exercised its discretion in denying the branch of thedefendants' motion which sought recusal. "Absent a legal disqualification under Judiciary Law§ 14, a Trial Judge is the sole arbiter of recusal" (People v Moreno, 70NY2d 403, 405 [1987]). "A court's decision in this respect may not be overturned unless it wasan improvident exercise of discretion" (D'Andraia v Pesce, 103 AD3d 770, 771 [2013]). Denial of a motionfor recusal is appropriate where, as here, the movant "fail[s] to set forth any proof of bias orprejudice on the part of the court which would have warranted recusal" (Sassower v Gannett Co., Inc., 109AD3d 607, 609 [2013]; see WellsFargo Bank, N.A. v Chaplin, 144 AD3d 1021, 1021 [2016]).
The contention raised in Point IV of the defendants' brief is improperly raised for the firsttime on appeal.
The defendants' remaining contentions are without merit. Dillon, J.P., Roman, Hinds-Radixand Barros, JJ., concur.