Order, Supreme Court, Bronx County (Larry S. Schachner, J.), entered on or about October 19, 2007, which, inter alia, directed defendant to produce documents and, insofar as appealed from, sua sponte directed that "affidavits on searches . . . comply with 'Lewis' case," unanimously reversed, on the facts, without costs, and the quoted phrase deleted.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Tom, J.P., Nardelli, McGuire, Acosta, DeGrasse, JJ.
Unlike the situation in Lewis v City of New York (17 Misc 3d 559 ), the record in this case does not show that the party obligated to produce documents "'has repeatedly failed to comply with discovery orders'" (id. at 564, quoting Figdor v City of New York, 33 AD3d 560, 561 ). Under the circumstances, it was an improvident 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 on matters outside the record and therefore cannot be considered on appeal (see Walker v City of New York, 46 AD3d 278, 282 ; Scotto v Mei, 219 AD2d 181, 183-184 ). However, we decline to strike plaintiff's entire brief. In light of our disposition of the appeal, we need not reach defendant's constitutional argument.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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