11308N. GOSMILE, INC., ETC., plf-ap, v. DR. JONATHAN B. LEVINE, def-res — [AND A THIRD PARTY ACTION] Rakower Lupkin PLLC, New York (Jonathan D. Lupkin of counsel), for ap — Davidoff Hutcher & Citron LLP, New York (Joshua Krakowsky of counsel), for res — Order, Supreme Court, New York County (Charles E. Ramos, J.), entered August 1, 2012, which denied plaintiff’s motion, pursuant to CPLR 3104(d), to reject the decision and order of the Special Referee, dated April 6, 2012, denying its motion to compel production of documents postdating January 28, 2009, unanimously affirmed, without costs.
Plaintiff’s first demand for production of documents wasdated May 4, 2009. In his June 2, 2009 response to that demand,defendant objected to the extent the demand had no time limits,and stated that he construed the request to seek documents generated before January 28, 2009, the date on which the actionwas commenced. When plaintiff subsequently served new discoverydemands, seeking documents generated before March 29, 2010,defendant’s response incorporated by reference the objectionsraised in his June 2, 2009 response to plaintiff’s initialdemand. Plaintiff subsequently acknowledged that defendant’srolling document production was completed on August 2, 2010. OnNovember 15, 2010, the Special Referee instructed the parties tofile letter briefs outlining all discovery disputes. Plaintiff’sextensive letter brief, filed on or about December 9, 2010, didnot object to defendant’s withholding of documents generatedafter January 28, 2009. By order entered February 28, 2011, theSpecial Referee resolved the parties’ stated discovery disputes.Thereafter, on February 28, 2012 – more than 2 yearsafter defendant first asserted the temporal objection toplaintiff’s document demand, 14 months after the date by whichthe Special Referee had instructed plaintiff to file a letterbrief addressing all outstanding discovery disputes, and one yearafter the Special Referee entered an order resolving all suchdisputes – plaintiff for the first moved to compel defendant toproduce documents generated after January 28, 2009. The SpecialReferee denied the motion, and Supreme Court upheld thatdetermination.
