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Thelma Grace Harvey Robinson v. Grote Street Associates

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT


April 5, 2011

THELMA GRACE HARVEY ROBINSON,
PLAINTIFF-RESPONDENT,
v.
GROTE STREET ASSOCIATES,
DEFENDANT,
v.
GUTMAN, MINTZ, BAKER & SONNENFELDT, P.C.,
DEFENDANT-APPELLANT.

Gutman, Mintz, Baker & Sonnenfeldt, P.C., appeals, as limited by its brief, from that portion of an order of the Civil Court of the City of New York, Bronx County (Irving Rosen, JHO), dated August 24, 2010, which, sua sponte, limited disclosure to a written demand for production of documents.

Per curiam.

Robinson v Grote St. Assoc.

Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 5, 2011

PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr. JJ

Order (Irving Rosen, JHO), dated August 24, 2010, reversed, without costs, and the matter remitted to Civil Court for further proceedings consistent with this decision.

While the pre-trial conference order is not appealable as of right because it did not decide a motion made on notice (CCA 1702[a][2]; see Alveranga-Duran v New Whitehall Apts., LLC, 40 AD3d 287, 289 [2007]), in the interest of judicial economy, we nostra sponte deem the notice of appeal to be a motion for leave to appeal, and grant such leave (see CCA 1702[c]; Kreman v Benedict P. Morelli & Assoc., PC, ___AD3d___, 2011 NY Slip Op 00405 [2011]; Alveranga-Duran v New Whitehall Apts., LLC, 40 AD3d at 289; Beth Israel Med. Ctr. v Rodriguez, 23 Misc 3d 128[A], 2009 NY Slip Op 50619[U] [2009]).

In light of "New York's policy favoring open disclosure" (Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 745-746 [2000]), the pre-trial order, which circumscribed appellant's discovery to serving written notices for the discovery of documents, was erroneous. Defendant should have been allowed "full disclosure of all matter material and necessary" for its defense of the action as provided in CPLR 3101 and 3102 (see CCA 1101; Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406 [1968]), including the scheduling of examinations before trial.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: April 05, 2011

20110405

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