Yellow Book Sales & Distrib. Co., Inc. v Michalczyk

[*1] Yellow Book Sales & Distrib. Co., Inc. v Michalczyk 2009 NY Slip Op 50972(U) [23 Misc 3d 140(A)] Decided on May 14, 2009 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 14, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MOLIA, J.P., SCHEINKMAN and LaCAVA, JJ
2007-1937 S C.

Yellow Book Sales and Distribution Company, Inc., Respondent,

against

Mildred Michalczyk, Appellant.

Appeal from an order of the District Court of Suffolk County, First District (James P. Flanagan, J.), entered October 11, 2007. The order denied defendant's motion for summary judgment dismissing the complaint or, in the alternative, for additional discovery and sanctions, and, upon searching the record, granted plaintiff partial summary judgment on so much of its claim as sought to recover for ads totaling $8,797.80, and ordered a hearing to assess damages with respect to the remainder of plaintiff's claim.

Order modified by striking the provision awarding plaintiff partial summary judgment on so much of its claim as sought to recover for ads totaling $8,797.80 and by providing that, upon searching the record, partial summary judgment is granted to plaintiff on the issue of liability; as so modified, order affirmed without costs and matter remanded to the District Court for a hearing on the issue of damages in accordance with the decision herein.

In this action seeking to recover the principal sum of $11,125.80 for advertising printed in plaintiff's various Yellow Book directories, defendant moved for summary judgment or, in the alternative, for additional discovery and sanctions. In support of the motion for summary judgment, defendant addressed only an advertisement placed in plaintiff's Farmingdale directory, which advertisement plaintiff had conceded contained printing errors, and the cost of which advertisement was $2,328. In opposition to the motion, plaintiff claimed that defendant had conceded liability on the ads she had placed in various other directories, the cost of which totaled $8,797.80. In the order appealed from, the District Court denied defendant's motion in all [*2]respects and, upon searching the record, granted partial summary judgment awarding plaintiff the principal sum of $8,797.80 and ordered a hearing to assess damages with respect to the remaining bill in the sum of $2,328.

The District Court has the authority to search the record and grant summary judgment to a non-moving party (CPLR 3212 [b]). In the instant matter, however, the court erred in finding that defendant had conceded that she owed $8,797.80 on the other ads. While the motion papers establish that plaintiff is due an amount for the ads which were correctly printed, it cannot be determined from the papers which ads were correctly printed and the amount owed therefor. Consequently, upon searching the record, the District Court should have awarded plaintiff partial summary judgment on the issue of liability only and the matter should have been set down for a hearing on the issue of damages to make such determination.

With regard to the branches of defendant's motion seeking additional discovery and sanctions relating thereto, we find that defendant is not entitled to discovery to depose additional corporate witnesses. A corporate entity has the right to designate, in the first instance, the employee who shall be examined (see Sladowski-Casolaro v World Championship Wrestling, Inc., 47 AD3d 803 [2008]). Contrary to defendant's contention, plaintiff's witness had knowledge of the facts in this case based upon the books and records kept by plaintiff. Defendant failed to demonstrate that additional witnesses would possess information which would be material and necessary to defend against plaintiff's claim (see id.). Accordingly, the branches of defendant's motion for additional discovery and sanctions were properly denied.

Defendant's remaining contentions are either without merit or not properly before us.

Molia, J.P., Scheinkman and LaCava, JJ., concur.
Decision Date: May 14, 2009