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Rivera v. NYP Holdings Inc.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


June 9, 2009

FRANCOIS RIVERA, PLAINTIFF-RESPONDENT,
v.
NYP HOLDINGS INC., ET AL., DEFENDANTS-APPELLANTS, TIME WARNER CABLE INC., ET AL., DEFENDANTS.

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered December 18, 2008, which, to the extent appealed from, denied the motion of defendants NYP Holdings Inc., Zach Haberman and Jim Hinch to compel certain discovery, unanimously reversed, on the law and the facts, without costs, and the motion to compel the sought disclosure granted.

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., Saxe, Sweeny, Abdus-Salaam, JJ.

114858/06

We conclude that the denial of defendants' motion to compel constituted an improvident exercise of discretion. Full disclosure is required of "all matter material and necessary" to the defense of an action (CPLR 3101[a]), and the words "material and necessary" are "to be interpreted liberally to require disclosure... of any facts bearing on the controversy" (Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]). Defendants are entitled to the discovery they seek in their efforts both to establish their defense of truth to plaintiff's defamation claims (see Wright v Snow, 175 AD2d 451 [1991], lv dismissed 79 NY2d 822 [1991]), and to defend against plaintiff's assertion of damage to his reputation (cf. Burdick v Shearson Am. Express, 160 AD2d 642 [1990], lv denied 76 NY2d 706 [1990]). Moreover, defendants are entitled to the opportunity to demonstrate the truth of the articles as a whole (see Miller v Journal News, 211 AD2d 626, 627 [1995]), warranting disclosure even as to assertions in those articles that are not directly challenged in plaintiff's complaint. Therefore, the inquiries related to grand jury testimony by plaintiff, information sought from or provided by plaintiff to the Commission on Judicial Conduct, and plaintiff's arrest record, if any, seek information sufficiently material and relevant to the defense of the action to warrant disclosure.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090609

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