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JASON QUINONES et al., Respondents, et al., Defendants.

Appellate Division of the Supreme Court of New York, First Department.

95 A.D.3d 652, 945 N.Y.S.2d 22

Decided May 17, 2012.

Retamozzo v. Quinones
95 A.D.3d 652, 945 N.Y.S.2d 22


Because the order appealed from is appealable as of right (see CPLR 5701 [a] [2]), plaintiff should have served and filed a notice of appeal instead of moving for leave to appeal. When the motion for leave to appeal was denied, in order to take advantage of the tolling provision provided in CPLR 5514 (a), plaintiff should have served and filed a notice of appeal within the time set forth in CPLR 5513 (a), computed from the date the motion for leave to appeal was denied. He did not and thus the appeal is untimely.

In any event, were we to reach the merits, we would affirm. Plaintiff's argument that defendants failed to include an affirmation of good faith in support of their motion to compel is belied by the record. Further, the IAS court's order that plaintiff was not to have his own personal recording device during depositions was an appropriate exercise of the court's power to regulate discovery (see CPLR 3103), especially given plaintiff's habit of tape recording conversations without notice to his interlocutor. Plaintiff was required to provide his mental health records, as he had affirmatively placed his mental and emotional state at issue (Fox v Marshall, 91 AD3d 710, 711-712 [2012]). Because plaintiff had not yet produced any documents, but admitted to having responsive documents, the IAS court properly ordered him to produce the documents.

The IAS court providently exercised its discretion in finding that the interrogatory responses of defendants were adequate. The motion for sanctions was also properly denied, as there was no indication that defendants failed to respond to discovery, let alone that they wilfully refused to provide information (see CPLR 3126).

The case of Retamozzo v. Quinones is provided as part of a free educational service by J. Douglas Barics, attorney at law, for reference only. Cases such as Retamozzo v. Quinones may be overruled by subsequent decisions, different judicial departments may have different controlling case law, and the level of the court deciding each case will determine whether it is controlling law or not. Retamozzo v. Quinones is presented here to help illustrate how the law works in general, but for specific legal matters, an attorney should be consulted.

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