Internor Trade, Inc. v. Goldmark Plastic Compounds

166 A.D.2d 211 | N.Y. App. Div. | 1990

Order, Supreme Court, New York County (Burton S. Sherman, J.), entered on or about March 30, 1990, which, inter alia, denied plaintiff’s motion, pursuant to CPLR 3126, to strike defendants’ answers, and directed defendants to produce documents requested by plaintiff within 60 days of the date of the order, unanimously affirmed, without costs and without disbursements.

Plaintiff’s failure to avail itself of the right to examine further documents at defendants’ premises, between November 16 and December 31, 1987, until two years later, did not constitute a waiver. Waiver is the intentional relinquishment of a known right, which must be evidenced by a clear manifestation of intent. (Frank Corp. v Federal Ins. Co., 70 NY2d 966.) Insofar as plaintiff and defendants untimely proceeded with other aspects of discovery, pursuant to the preliminary conference order, there is no basis to hold that this aspect of discovery was waived. Moreover, it would be unfair to require plaintiff to defend against defendants’ counterclaims without full disclosure. We also note that defendants never responded to plaintiff’s original request for documents. Concur—Murphy, P. J., Kupferman, Ross and Ellerin, JJ.