June 19, 2013
H.R. Prince, Inc., etc., respondent,
Elite Environmental System, Inc., et al., appellants. Index No. 1877/09
Arthur V. Graseck, Jr., Oakdale, N.Y., for appellants.
Law Firm of Elias C. Schwartz, PLLC, Great Neck, N.Y. (Elizabeth Hoffmann of counsel), for respondent.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, SYLVIA HINDS-RADIX, JJ.
DECISION & ORDER
In an action to recover damages for breach of contract, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Whelan, J.), dated December 7, 2011, as denied that branch of their motion which was to compel the plaintiff to provide unredacted phone records, and granted that branch of the plaintiff's cross motion which was pursuant to CPLR 3126 to preclude the defendants from presenting certain evidence at trial.
ORDERED that the order is affirmed insofar as appealed from, with costs.
Although CPLR 3101(a) is to be construed liberally so that there should be disclosure of any evidence that is material, necessary and arguably relevant (see Allen v Crowell-Collier Publ. Co., 21 N.Y.2d 403, 406-407; Lentz v Nic's Gym Inc., 76 A.D.3d 998, 998; Foster v Herbert Slepoy Corp., 74 A.D.3d 1139, 1140; Shanahan v Bambino, 271 A.D.2d 519), " unlimited disclosure is not required, and supervision of disclosure is generally left to the trial court's broad discretion'" (Palermo Mason Constr. v Aark Holding Corp., 300 A.D.2d 460, 461, quoting Blagrove v Cox, 294 A.D.2d 526, 526; see Arpino v F.J.F. & Sons Elec. Co., Inc., 102 A.D.3d 201, 209; Spodek v Neiss, 70 A.D.3d 810, 810; Reilly Green Mtn. Platform Tennis v Cortese, 59 A.D.3d 694, 695; Cabellero v City of New York, 48 A.D.3d 727, 728). The Supreme Court's determination as to discovery issues will not be disturbed on appeal unless improvidently made (see Foster v Herbert Slepoy Corp., 74 A.D.3d at 1140; Casabona v Huntington Union Free School Dist., 29 A.D.3d 723, 723). The test to be employed by the Supreme Court when determining discovery issues is one based on usefulness and reason (see Andon v 302-304 Mott St. Assoc., 94 N.Y.2d 740, 746; Allen v Crowell-Collier Publ. Co., 21 N.Y.2d at 406). However, discovery demands which are unduly burdensome, lack specificity, or seek privileged and/or irrelevant information are improper and will be vacated (see Board of Mgrs. of the Park Regent Condominium v Park Regent Assoc., 78 A.D.3d 752, 753; Bell v Cobble Hill Health Ctr., Inc., 22 A.D.3d 620, 621; Lopez v Huntington Autohaus, 150 A.D.2d 351, 352).
Here, the defendants failed to demonstrate that the unredacted telephone records of the plaintiff that they demanded were either material or relevant to the case, or would lead to possibly relevant evidence. Thus, the Supreme Court providently exercised its discretion in denying that branch of the defendants' motion which was to compel the plaintiff to produce those records.
"The failure to comply with deadlines and provide good-faith responses to discovery demands impairs the efficient functioning of the courts and the adjudication of claims'" (Arpino v F.J.F. & Sons Elec. Co., Inc., 102 A.D.3d at 207, quoting Gibbs v St. Barnabas Hosp., 16 N.Y.3d 74, 81). The nature and degree of the penalty to be imposed pursuant to CPLR 3126 lies within the sound discretion of the trial court (see CPLR 3126; Kihl v Pfeffer, 94 N.Y.2d 118, 122-123; Bernal v Singh, 72 A.D.3d 716, 717; Pirro Group, LLC v One Point St., Inc., 71 A.D.3d 654, 655; Greene v Mullen, 70 A.D.3d 996, 996; Dank v Sears Holding Mgt. Corp., 69 A.D.3d 557, 557). Here, the plaintiff made a clear showing that the defendants failed to comply with the compliance conference order dated April 26, 2011, which required them to respond to certain requests made in the plaintiff's supplemental notice of demand for production of documents dated March 2, 2011, since the defendants did not provide meaningful responses to those demands (see CPLR 3126; Arpino v F.J.F. & Sons Elec. Co., Inc., 102 A.D.3d at 211; Pirro Group, LLC v One Point St., Inc., 71 A.D.3d at 655). Further, the defendants' willful and contumacious conduct in failing to meaningfully respond to those demands was reasonably inferred from the defendants' repeated failures to respond to the plaintiff's demands and the court's compliance conference order without a reasonable excuse (see Arpino v F.J.F. & Sons Elec. Co., Inc., 102 A.D.3d at 211; Pirro Group, LLC v One Point St., Inc., 71 A.D.3d at 655; Dank v Sears Holding Mgt. Corp., 69 A.D.3d at 557; Workman v Town of Southampton, 69 A.D.3d 619, 620). Accordingly, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff's cross motion which was pursuant to CPLR 3126 to preclude the defendants from presenting evidence at trial with respect to those items sought in the plaintiff's supplemental notice of demand for production of documents dated March 2, 2011, which were delineated in the plaintiff's "notice of preclusion" dated December 12, 2011.
DILLON, J.P., CHAMBERS, AUSTIN and HINDS-RADIX, JJ., concur.