Donald Rubin Inc. v. Schwartz

Oct 24, 1995
Versions:220 A.D.2d 323
632 N.Y.S.2d 787
1995 N.Y. App. Div. LEXIS 10419

—Order, Supreme Court, New York County (Beatrice Shainswit, J.), entered on or about July 25, 1994, which denied plaintiffs’ motion for a protective order limiting disclosure of tax returns and other financial information, and which denied defendants’ cross motion to dismiss the action as a sanction for failure to comply with prior discovery orders, unanimously affirmed, without costs.

In this action for damages arising from defendants’ alleged breach of a contract to provide consulting and administrative services, this Court previously found "a reasonable possibility that evidence with respect to [plaintiffs’] mitigation of damages will be relevant at trial” and reversed the IAS Court’s denial of a motion to compel plaintiffs to respond to interrogatories, which included demands for production of tax and other financial information (191 AD2d 171, 172). The instant motion was made after defendants refused to agree to a proposed confidentiality agreement.

The order is appealable as it "affects a substantial right” (CPLR 5701 [a] [2] [v]; see, e.g., 85th St. Rest. Corp. v Sanders, 194 AD2d 324). Nor was plaintiffs’ motion untimely, since it claimed that matter requested was privileged under CPLR 3101 (Corriel v Volkswagen of Am., 127 AD2d 729, 730).

The court properly denied plaintiffs’ motion for a protective order as they failed to establish that the documents were confidential or privileged (see, Liga v Long Is. R. R., 121 AD2d 606, appeal dismissed 68 NY2d 911), and defendants had, in the previous appeal, addressed the "strong * * * necessity and desirability” for the information sought (Walter Karl, Inc. v Wood, 161 AD2d 704, 705).

The court also properly refused to dismiss the action as there was no showing that the default was deliberate, contumacious or a wilful disregard of the prior order (see, Cinelli v Radcliffe, 35 AD2d 829). Nor does plaintiffs’ appeal warrant sanctions pursuant to 22 NYCRR part 130. Concur—Rosenberger, J. P., Rubin, Ross, Nardelli and Mazzarelli, JJ.