ZIMMERMAN v. 410 57 CORPORATION (2025)

Order, Supreme Court, New York County (Dakota D. Ramseur, J.), entered May 28, 2024, which, to the extent appealed from, denied in part defendants’ motion under CPLR 3103 and 3123 for a protective order striking plaintiffs’ second notice to admit or to suppress the purportedly improperly obtained information, unanimously affirmed, with costs.

Supreme Court providently exercised its discretion in denying in part defendants’ motion because defendants failed to explain why any particular request was improper under CPLR 3123, to provide any factual basis supporting suppression of the information under CPLR 3103(c), or to establish that any particular information should have been obtained by another device (see e.g. Liberty Petroleum Realty, LLC v. Gulf Oil. L.P., 164 A.D.3d 401, 403, 84 N.Y.S.3d 82 [1st Dept. 2018]).  Defendants’ objections to broad categories of requests as going to the heart of the case, seeking irrelevant information, or seeking legal conclusions are not supported by any factual predicate to warrant a protective order or suppression of any information (see e.g. General Ins. v. Piquion, 211 A.D.3d 634, 635, 182 N.Y.S.3d 49[1st Dept. 2022]).  The requests, which seek authentication of cooperative documents and agreements, including the proprietary lease and house rules and the confirmation of their terms, are well within the bounds of CPLR 3123, which also permits inquiry into the responding party's understanding of their legal obligations (see Villa v. New York City Hous. Auth., 107 A.D.2d 619, 620, 484 N.Y.S.2d 4 [1st Dept. 1985]).

To the extent defendants offer objections to specific requests, these objections were not raised before Supreme Court and will not be considered for the first time on appeal (see e.g. Certain Underwriters at Lloyd's London v. Bioenergy Dev. Group, LLC, 189 A.D.3d 573, 575, 139 N.Y.S.3d 13 [1st Dept. 2020]).  We further observe that defendants did not raise any arguments in support of suppression in their opening brief, and in reply, they fail to establish prejudice to a substantial right for CPLR 3103(c) to apply, or any other basis to warrant suppression of information (see Lipin v. Bender, 84 N.Y.2d 562, 572, 620 N.Y.S.2d 744, 644 N.E.2d 1300 [1994]).

We have considered defendants’ remaining contentions and find them unavailing.