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Donald Rubin Inc. v. Schwartz

220 A.D.2d 323 Court N.Y. App. Div. Decision date 1995-10-24 English

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p. 323
Donald Rubin, Inc., et al., Appellants-Respondents, v Robert Schwartz et al., Respondents-Appellants.
[632 NYS2d 787]

—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.

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