Public Administrator v. Rad Oil Co.

— In an action to recover damages for personal injuries, etc., the defendants appeal, as limited by their brief, (1) from so much of an order of the Supreme Court, Queens County (Corrado, J.), dated September 10, 1987, as directed them to respond to items 4 (b), (c), (d); 5, 6 and 7 of the plaintiffs’ notice pursuant to CPLR 3101 (d) for discovery and inspection and denied those branches of their motion which were to strike those items, and (2) from so much of an order of the same court, dated November 20, 1987, as, upon reargument, adhered to the its original determination. Ordered that on the court’s own motion, the Public Administrator of Queens County, as administrator of the estate of Mario Correa, is substituted as a party plaintiff, and the caption is amended accordingly; and it is further, Ordered that the appeal from the order dated September 10, 1987 is dismissed, without costs or disbursements, as that order was superseded by the order dated November 20, 1987, made upon reargument; and it is further, Ordered that the order dated November 20, 1987 is modified by deleting the provision thereof adhering to the original determination denying those branches of the defendants’ motion which were to vacate items 4 (b), 6 and 7 of the plaintiffs’ notice for discovery and inspection, and substituting therefor a provision granting those branches of the motion, and as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the order dated September 10, 1987 is modified accordingly; and it is further, Ordered that the defendants’ time to respond to the notice for discovery and inspection, as modified by this court, is extended until 20 days after service upon them of a copy of this decision and order, with notice of entry. The defendants were not precluded from challenging the [409] propriety of the plaintiffs’ notice for discovery and inspection of the material in issue (see, Austin v Coastal Indus., 112 AD2d 123; CPLR 3103). We have vacated the notice for discovery and inspection to the extent it seeks material beyond the scope of CPLR 3101 (d). Thompson, J. P., Bracken, Brown, Weinstein and Spatt, JJ., concur.