DiscoveryMay 22, 2021

Valuecare Pharmacy Inc v MVAIC, 2021 NY Slip Op 50429(U)(App. Term 1st Dept. 2021)

There is irony when Supreme Court Justices opine that the failure to object solely leaves privilege and palpable impropriety as the sole grounds to object to discovery. It is not until the CC order that anyone takes discovery seriously, well after the 20-day period. But it is easier to legislate than it is to regulate.

“Where a party fails to timely object to discovery demands within the 20-day period prescribed by CPLR article 31 (see CPLR 3122[a]; 3133[a]), appellate review is limited to determining whether the requested material is privileged under CPLR 3101 or the demand is palpably improper (see Khatskevich v Victor, 184 AD3d 504 [2020]; Jefferson v State of New York, 60 AD3d 1215 [2009]). Here, defendant did not timely object to plaintiff’s discovery demands, including the interrogatories and notice for discovery and inspection, and, in fact, ignored them until plaintiff moved to compel compliance several months later. Since defendant did not argue below that the discovery requested was privileged or that the requests were palpably improper, we have no cause to disturb Civil Court’s grant of plaintiff’s motion to compel (see Precision Chiropractic, PC v MVAIC, 67 Misc 3d 126[A], 2020 NY Slip Op 50359[U] [App Term, 1st Dept 2020]).”

I think as a defendant, this Court has over the last 5 years been the tougher of the two intermediate lower-level appellate courts in which to prevail.

The theme is once discovery starts, the Court will not substitute its discretion for that of the trial court when a discovery order is a bit wayward