CASTILLO v. HENRY SCHEIN INC (1999)

In an action to recover damages for defamation, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Segal, J.), dated July 31, 1997, which (1) granted the defendants' motion for leave to amend their answer to assert a counterclaim for conversion, and (2) denied the plaintiffs' cross motion for leave to amend their complaint and to compel discovery.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly granted the defendants' motion for leave to amend their answer to assert a counterclaim for conversion (see generally, Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957, 471 N.Y.S.2d 55, 459 N.E.2d 164;  CPLR 3025).   Contrary to the plaintiffs' contention, the defendants made the requisite “evidentiary showing that the claim can be supported”, based on excerpts of the deposition testimony of the plaintiff Manuel Castillo (see, Morgan v Prospect Park Assocs. Holdings, L.P., 251 A.D.2d 306, 674 N.Y.S.2d 62;  see also, Cushman & Wakefield v. John David, Inc., 25 A.D.2d 133, 135, 267 N.Y.S.2d 714).

The branch of the plaintiffs' cross motion which was for leave to amend their complaint was properly denied, as the proposed causes of action were clearly lacking in merit (see, Metral v. Horn, 213 A.D.2d 524, 624 N.Y.S.2d 177;  McKiernan v. McKiernan, 207 A.D.2d 825, 616 N.Y.S.2d 629).

 With respect to that branch of the plaintiffs' cross motion which was to compel discovery, the Supreme Court did not improvidently exercise its discretion by directing the defendants to present an affidavit of due diligence in lieu of the documents requested.   It is well settled that a trial court is given broad discretion to oversee the discovery process (see, Lamagna v. New York State Assn. for the Help of Retarded Children, 222 A.D.2d 559, 635 N.Y.S.2d 98;  Cruzatti v. St. Mary's Hosp., 193 A.D.2d 579, 597 N.Y.S.2d 457) and that a party cannot be compelled to produce documents which do not exist (see, Wilensky v. JRB Mktg. & Opinion Research, 161 A.D.2d 761, 556 N.Y.S.2d 356;  Rosado v. Mercedes-Benz of North Amer., 103 A.D.2d 395, 480 N.Y.S.2d 124).

The plaintiffs' remaining contentions are without merit.

MEMORANDUM BY THE COURT.