Town of Babylon v LIMS, Inc.

[*1] Town of Babylon v LIMS, Inc. 2013 NY Slip Op 52221(U) Decided on December 20, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 20, 2013
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., IANNACCI and LaSALLE, JJ
2012-103 S C.

Town of Babylon, Respondent,

against

LIMS, Inc., as Agent, Appellant. TOWN OF BABYLON, Respondent, LIMS, INC., as Agent, Appellant. TOWN OF BABYLON, Respondent, NO. 2012-104 S C LIMS, INC., as Agent, Appellant.

Appeals from three orders of the District Court of Suffolk County, Second District (Joseph A. Santorelli, J.), each dated November 18, 2011. The orders, in three separate actions, denied defendant's motions to compel discovery pursuant to CPLR 3124 and 3126.

ORDERED that, on the court's own motion, the appeals are consolidated for purposes of disposition; and it is further,

ORDERED that the orders are affirmed, without costs.

Plaintiff commenced three separate actions against defendant to recover civil penalties for alleged violations of the New York State Fire Code and the Town Code of Babylon. In each action, defendant served an amended answer and interposed two counterclaims. The first counterclaim alleged that plaintiff had violated defendant's First Amendment rights by commencing these civil actions in retaliation for defendant's refusal to plead guilty to, and moving to dismiss, accusatory instruments charging defendant with the same violations in criminal proceedings. The second counterclaim alleged that, by prosecuting these civil actions, plaintiff had not treated defendant as other similarly situated parties and, thus, had acted in violation of the Equal Protection Clause of the Fourteenth Amendment. By a single order dated December 21, 2009, the District Court granted plaintiff's opposed motion in each action to [*2]dismiss the two counterclaims. On appeal, this court modified the District Court's order by providing that the branch of each of plaintiff's motions seeking to dismiss defendant's second counterclaim in each action was denied, finding that defendant had sufficiently alleged its equal protection selective enforcement cause of action (31 Misc 3d 139[A], 2011 NY Slip Op 50781[U] [2011]).

Thereafter, in each action, defendant moved pursuant to CPLR 3124 and 3126 to compel a response to its demand for discovery and inspection, and to its demand for answers to its interrogatories. Almost two months later, plaintiff opposed defendant's motion, claiming that the demands were palpably improper. In three separate orders dated November 18, 2011, the District Court denied defendant's motions in their entirety, finding that, as currently propounded, the demands were palpably improper in that they were "vague, overbroad, unduly burdensome, fail[ed] to specify with reasonable particularity many of the documents demanded and seek irrelevant and confidential information."

CPLR 3101 (a) provides that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof." The principle of "full disclosure," however, does not give a party a right to "uncontrolled and unfettered" disclosure (Buxbaum v Castro, 82 AD3d 925, 925 [2011]; see Spohn-Konen v Town of Brookhaven, 74 AD3d 1049 [2010]; Harris v Pathmark Stores, Inc., 48 AD3d 631 [2008]; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531 [2007]; Silcox v City of New York, 233 AD2d 494 [1996]). Generally, the supervision of disclosure is left to the broad discretion of the motion court, which must balance the parties' competing interests (see Accent Collections, Inc. v Cappelli Enters., Inc., 84 AD3d 1283 [2011]; Kooper v Kooper, 74 AD3d 6 [2010]). The motion court's determination will not be disturbed on appeal absent an improvident exercise of that discretion (see Foster v Herbert Slepoy Corp., 74 AD3d 1139 [2010]; Reilly Green Mtn. Platform Tennis v Cortese, 59 AD3d 694 [2009]).

While the failure of a party to challenge a discovery demand within the time prescribed by the CPLR may foreclose inquiry into the propriety of the information sought, there is an exception with regard to demands which are palpably improper (see Accent Collections, Inc. v Cappelli Enters., Inc., 84 AD3d 1283; Park Knoll Assoc. v Schmidt, 99 AD2d 772 [1984]; Zambelis v Nicholas, 92 AD2d 936 [1983]). Thus, a motion to compel discovery is properly denied where the discovery seeks information which is irrelevant, overly broad, or burdensome (see Merkos L'Inyonei Chinuch, Inc. v Sharf, 59 AD3d 408 [2009]; Gilman & Ciocia, Inc. v Walsh, 45 AD3d 531; Paradis v F.L. Smithe Mach. Co., Inc., 25 AD3d 594 [2006]; Park Knoll Assoc. v Schmidt, 99 AD2d 772). Under such circumstances, "the appropriate remedy is to vacate the entire demand rather than to prune it" (Bell v Cobble Hill Health Ctr., Inc., 22 AD3d 620, 621 [2005]; see also Astudillo v St. Francis-Beacon Extended Care Facility, Inc., 12 AD3d 469 [2004]; Latture v Smith, 304 AD2d 534 [2003]). "The burden of serving a proper demand is upon counsel, and it is not for the courts to correct a palpably bad one" (Bell, 22 AD3d at 621 [internal quotation marks omitted]). Based on the foregoing, we find that the District Court did not improvidently exercise its discretion in denying defendant's motions for relief pursuant to CPLR 3124 and CPLR 3126 in each of the three actions. We note that defendant is not foreclosed from serving a proper set of demands (see e.g. Astudillo, 12 AD3d 469; Manzo v Westchester Rockland Newspapers, Inc., 106 AD2d 492 [1984]). [*3]

Accordingly, the orders are affirmed.

Nicolai, P.J., Iannacci and LaSalle, JJ., concur.
Decision Date: December 20, 2013