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Gottfried v. Maizel

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 22, 2009

DAVID GOTTFRIED, ETC., APPELLANT,
v.
BARRY MAIZEL, RESPONDENT.

In an action to recover damages for wrongful death, etc., the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Held, J.), dated July 18, 2008, as denied, in part, his motion to compel discovery.

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.

REINALDO E. RIVERA, J.P. JOSEPH COVELLO, DANIEL D. ANGIOLILLO, JOHN M. LEVENTHAL and SHERI S. ROMAN, JJ.

(Index No. 23740/07)

DECISION & ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

Under the circumstances of this case, the Supreme Court did not improvidently exercise its discretion in only partially granting the plaintiff's motion to compel disclosure. The defendant could not be compelled to produce records, documents, or information that were not in his possession, or did not exist (see Argo v Queens Surface Corp., 58 AD3d 656; Maffai v County of Suffolk, 36 AD3d 765; Sagiv v Gamache, 26 AD3d 368, 369), or that were privileged (see Logue v Velez, 92 NY2d 13). Contrary to the plaintiff's arguments, the Preliminary Conference Order dated February 13, 2008, did not preclude the court from reviewing the propriety of his discovery demands or the adequacy of the defendant's response to those demands.

RIVERA, J.P., COVELLO, ANGIOLILLO, LEVENTHAL and ROMAN, JJ., concur.

20091222

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