GoSMILE, Inc. v Levine

GoSMILE, Inc. v Levine 2013 NY Slip Op 08215 Decided on December 10, 2013 Appellate Division, First Department 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.

Decided on December 10, 2013
Tom, J.P., Friedman, Acosta, Moskowitz, Gische, JJ.
11308N 601148/09

[*1]GoSMILE, Inc., etc., Plaintiff-Appellant, Dr.

v

Jonathan B. Levine, Defendant-Respondent. [And a Third Party Action]




Rakower Lupkin PLLC, New York (Jonathan D. Lupkin of
counsel), for appellant.
Davidoff Hutcher & Citron LLP, New York (Joshua
Krakowsky of counsel), for respondent.

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered August 1, 2012, which denied plaintiff's motion, pursuant to CPLR 3104(d), to reject the decision and order of the Special Referee, dated April 6, 2012, denying its motion to compel production of documents postdating January 28, 2009, unanimously affirmed, without costs.

Plaintiff's first demand for production of documents was
dated May 4, 2009. In his June 2, 2009 response to that demand,
defendant objected to the extent the demand had no time limits,
and stated that he construed the request to seek documents generated before January 28, 2009, the date on which the action
was commenced. When plaintiff subsequently served new discovery
demands, seeking documents generated before March 29, 2010,
defendant's response incorporated by reference the objections
raised in his June 2, 2009 response to plaintiff's initial
demand. Plaintiff subsequently acknowledged that defendant's
rolling document production was completed on August 2, 2010. On
November 15, 2010, the Special Referee instructed the parties to
file letter briefs outlining all discovery disputes. Plaintiff's
extensive letter brief, filed on or about December 9, 2010, did
not object to defendant's withholding of documents generated
after January 28, 2009. By order entered February 28, 2011, the
Special Referee resolved the parties' stated discovery disputes.
Thereafter, on February 28, 2012 - more than 2½ years
after defendant first asserted the temporal objection to
plaintiff's document demand, 14½ months after the date by which
the Special Referee had instructed plaintiff to file a letter
brief addressing all outstanding discovery disputes, and one year
after the Special Referee entered an order resolving all such [*2]
disputes - plaintiff for the first moved to compel defendant to
produce documents generated after January 28, 2009. The Special
Referee denied the motion, and Supreme Court upheld that
determination.

Under the circumstances, and in view of the broad discretion
with which the trial court is vested to supervise the discovery
process (see Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman &
Dicker, 1 AD3d 223 [1st Dept 2003]), we find that Supreme
Court, adopting the view of the Special Referee, providently
denied plaintiff's motion to compel defendant to produce
documents generated after January 28, 2009, on the ground that
the request for such production came 2½ years too
late. The record supports the Special Referee's conclusion,
adopted by Supreme Court, that "the delay [in seeking to compel],
coupled with the absence of any rational reason or excuse, is
nothing less than a constructive waiver to compel compliance of
an original demand made in June 2009, and rejected by defendant"
(see Pierson v N. Colonie Cent. School Dist., 74 AD3d 1652, 1654
[3d Dept 2010], lv denied 15 NY3d 715 [2010]). The record also
supports Supreme Court's conclusion that defendant's June 2, 2009
temporal objection had never been withdrawn and, therefore, had
been continuously outstanding until plaintiff belatedly
challenged it on February 28, 2012.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 10, 2013

CLERK