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Supreme Court, Appellate Division, Fourth Department, New York.

Duane C. BASCH, Plaintiff-Respondent-Appellant, v. Howard J. GREENWALD, Defendant-Appellant-Respondent.

Decided: March 18, 2005

PRESENT:  HURLBUTT, J.P., SMITH, PINE, LAWTON, AND HAYES, JJ. Wolford & LeClair LLP, Rochester (Paul L. LeClair of Counsel), for Defendant-Appellant-Respondent. Dibble, Miller & Burger, P.C., Rochester (Michael A. Burger of Counsel), for Plaintiff-Respondent-Appellant.

 Plaintiff and defendant are former law partners seeking relief against one another under various theories.   This appeal and cross appeal emanate from a discovery order issued by Supreme Court following plaintiff's motion to strike defendant's amended answer and counterclaims pursuant to CPLR 3126.   Upon receipt of the motion, the court scheduled a conference and informed defendant that answering papers would not be due before the conference.   The court also noted that the time for answering papers would also be set at the conference.   The day after the conference, plaintiff submitted to the court the proposed order resulting from the conference, which was signed approximately one week later and explicitly provided that it was “without the consent of the parties.”   We agree with defendant that he should have been given an opportunity to submit responding papers and present oral argument on the issues raised in plaintiff's motion.

 “The Appellate Division is vested with the same power as possessed by Supreme Court and may reverse in the exercise of discretion even though there has been no abuse of discretion by Supreme Court.   Thus, we reverse the order and remit the matter to Supreme Court to allow oral argument and to enable all parties to submit additional papers on the issues” (Chamberlin v. Samaritan Med. Ctr., 249 A.D.2d 956, 957, 672 N.Y.S.2d 571 [internal citation omitted] ).   Additionally, we note that, because the conference was not recorded and there are no responding papers, “[w]e are unable on this record to reach [defendant's] remaining arguments on the issue whether the requested [discovery] and information are privileged” (id.).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed in the exercise of discretion without costs and the matter is remitted to Supreme Court, Monroe County, for further proceedings.


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