Opinion
11-10-2016
Margarita ZULEY, M.D., Plaintiff–Respondent, v. ELIZABETH WENDE BREAST CARE, LLC, Stamatia Destounis, M.D., Philip Murphy, M.D., Posy Seifert, D.O., Patricia Somerville, M.D., Defendants–Appellants, et al., Defendant.
Underberg & Kessler LLP, Buffalo (Thomas F. Knab of Counsel), for defendants-appellants. Woods Oviatt Gilman LLP, Rochester (Brian J. Capitummino of Counsel), for plaintiff-respondent.
Appeal from an order of the Supreme Court, Monroe County (Matthew A. Rosenbaum, J.), entered November 16, 2015. The order granted the motion of plaintiff to compel defendants-appellants to respond to requests two through five of plaintiff's second notice to produce.
Underberg & Kessler LLP, Buffalo (Thomas F. Knab of Counsel), for defendants-appellants.
Woods Oviatt Gilman LLP, Rochester (Brian J. Capitummino of Counsel), for plaintiff-respondent.
MEMORANDUM:On a prior appeal, we modified the order granting summary judgment dismissing the complaint in its entirety by reinstating the cause of action for unjust enrichment against defendants-appellants, and we remitted the matter to Supreme Court to rule on plaintiff's motion to compel further discovery, which it had determined was moot (Zuley v.
Elizabeth Wende Breast Care, LLC, 126 A.D.3d 1460, 6 N.Y.S.3d 830, amended on rearg. 129 A.D.3d 1558, 12 N.Y.S.3d 584 ). The court granted the motion, and we affirm. It is well established that the court “is vested with broad discretion to supervise discovery and to determine what disclosure is material and necessary” (Cain v. New York Cent. Mut. Fire Ins. Co., 38 A.D.3d 1344, 1344, 830 N.Y.S.2d 685 ). Generally, “[a]bsent an abuse of discretion, we will not disturb the court's control of the discovery process” (McCarter v. Woods, 106 A.D.3d 1540, 1541, 964 N.Y.S.2d 825 [internal quotation marks omitted] ). We perceive no abuse of discretion in this case. Although we may substitute our discretion for that of the trial court, even in the absence of an abuse of discretion (see Smalley v. Harley–Davidson Motor Co., Inc., 115 A.D.3d 1369, 1370, 983 N.Y.S.2d 707 ), we decline to do so here.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
SMITH, J.P., CARNI, LINDLEY, DeJOSEPH, and SCUDDER, JJ., concur.