MCMAHON v. The Andrews Organization formerly known as Andrews Building Corporation, et al., Defendants, (2020)

Order, Supreme Court, New York County (Paul A. Goetz, J.), entered July 19, 2019, which, to the extent appealed as limited by the briefs, denied the motion of Cobblestone Lofts Condominium (Cobblestone) to vacate the note of issue and compel production of an unredacted settlement agreement between plaintiffs and third-party defendant Walter B. Melvin Architects, LLC (WBMA), unanimously affirmed, without costs.

Cobblestone's argument that plaintiffs and WBMA failed to timely object to their discovery demands is unpreserved for review, as it was never raised before the IAS court (see ID Beauty S.A.S. v. Coty Inc. Headquarters, 164 A.D.3d 1186, 1186, 84 N.Y.S.3d 449 [1st Dept. 2018];  see also Admiral Ins. Co. v. Marriott Intl., Inc., 79 A.D.3d 572, 572, 915 N.Y.S.2d 31 [1st Dept. 2010], lv denied 17 N.Y.3d 708, 2011 WL 4030071 [2011] ).  Moreover, the timeliness of plaintiffs' and WBMA's objections is not a pure question of law appearing on the face of the record which could not have been avoided if raised at the proper juncture (see e.g. Martinez v. City of New York, 175 A.D.3d 1284, 1285, 105 N.Y.S.3d 901 [2d Dept. 2019];  see also R & B Design Concepts Inc. v. Wenger Constr. Co., Inc., 153 A.D.3d 864, 60 N.Y.S.3d 364 [2d Dept. 2017] ).

Plaintiffs and WBMA complied with the IAS court's preliminary conference order, which explicitly limited disclosure to a redacted settlement agreement revealing only the release language and settlement amount.  Counsel for Cobblestone did not object to the IAS court's directive or move to reargue its order.  Thus, the IAS court providently denied Cobblestone's motion to strike the note of issue, as there was no outstanding discovery when plaintiffs filed the note of issue and the certificate of readiness contained no factual errors (see Pannone v. Silberstein, 40 A.D.3d 327, 328, 837 N.Y.S.2d 9 [1st Dept. 2007] ).  In any event, Cobblestone failed to demonstrate that the unredacted settlement agreement terms that it sought were material or necessary to its defense or claims (see CPLR 3101(a);  Matter of New York County Data Entry Worker Prod. Liab. Litig., 222 A.D.2d 381, 635 N.Y.S.2d 641 [1st Dept. 1995] ).