Buffalo Law Journal Blawg Article
Define That Term #149

4th Dept.--Two Cases of Interest

The Fourth Department recently handed down a number of decisions.  I'll be highlighting a few of the cases over the next few days.  For today, two decisions of interest, one addressing an evidentiary issue and the other a venue issue:

  • Foley v West-herr Ford, Inc., 2006 NY Slip Op 06723--The Fourth Department held that the lower court properly concluded that information collected by the defendants' experts was not discoverable:
    • Supreme Court did not abuse its discretion in denying plaintiffs' motion to compel disclosure of, inter alia, the factual findings, calculations, measurements and diagrams collected by defendants' experts from the accident scene (see generally Nyhlen v Millard Fillmore Hosps., 275 AD2d 943). The information sought is immune from disclosure because it constitutes material prepared in anticipation of litigation, and plaintiffs failed to demonstrate a substantial need for such information and that they were unable to obtain its substantial equivalent without undue hardship (see CPLR 3101 [d] [2]).
  • Eber-ndc, LLC v Star Indus., Inc., 2006 NY Slip Op 06940--The Fourth Department held that the trial court erred when it consolidated actions pending in two counties and changed the venue to its county:
    • Pursuant to CPLR 511 (c) and 2201, once Star moved in the Nassau Court to change venue in the Monroe action, that court had the authority to stay the proceedings in the Monroe action. Despite the Nassau Court's order staying all proceedings in that action, which was then pending in Monroe County, the Monroe Court nevertheless granted Eber's motion to consolidate and, "incidently," changed the venue of the Nassau County action to Monroe County. We conclude that the Monroe Court erred in failing to give effect to the stay ordered by the Nassau Court. Even if the stay were improperly granted, the proper procedure would have been for Eber to move to vacate the stay. (Internal citations omitted.)


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