F. A. J. Co. v. Emenee Corp.

In an action for a declaratory judgment and an injunction, plaintiff appeals from an [926] order of the Supreme Court, Queens County, dated October 25, 1976, which denied its motion to compel production of certain documents pursuant to its notice for discovery and inspection. Order reversed, with $50 costs and disbursements, and motion granted. Defendant’s time to produce the documents sought in the notice for discovery and inspection is extended until 20 days after entry of the order to be made hereon. Plaintiff served a notice for discovery and inspection, dated September 10, 1976, pursuant to CPLR 3120 (subd [a]). Defendant failed to produce the noticed documents. Plaintiff thereafter moved for an order pursuant to CPLR 3124 and 3126 directing defendant to produce the documents set forth in the notice for discovery and inspection. Defendant objects to discovery on the grounds that the materials sought are confidential and irrelevant to the matter in litigation. Since the materials sought do not fall within CPLR 3101 (subds [b], [c], [d]), that question need not be reached. In our view, defendant waived its right to object by failing to move for a protective order within the time provided for by CPLR 3122 (see Coffey v Orbachs, Inc., 22 AD2d 317; cf. Whittington v Rectors of Church of Advent, 54 AD2d 732. Hopkins, Acting P. J., Martuscello, Cohalan and Damiani, JJ., concur.