Marine Midland Bank, N.A. v. Fusco

Mercure, J. Appeal from an order of the Supreme Court (Kahn, J.), entered March 22, 1988 in Albany County, which, inter alia, granted plaintiff’s motion for a protective order. In September 1985, Supreme Court granted judgment which, inter alia, entitled plaintiff to take into its possession and sell "all equipment, fixtures, inventory, accounts, chattel paper, documents, instruments and general intangibles” of St. Maarten Tan, Inc. This action was commenced to recover certain of the property of St. Maarten Tan which plaintiff alleges is in the possession of defendant. Defendant served a notice to take an oral deposition of an employee of plaintiff and required production of plaintiff’s entire file concerning the loan to St. Maarten Tan which formed the basis for liability in the prior action. Plaintiff moved for a protective order and defendant cross-moved for an order of preclusion, based upon plaintiff’s alleged failure to adequately respond to defendant’s demand for a bill of particulars. Supreme Court granted the motion and denied the cross motion. Defendant appeals. [797] We affirm. Supreme Court did not err in granting plaintiffs motion for a protective order because the discovery sought by defendant is not relevant to the issues in this action (see, Handy v Geften Realty, 129 AD2d 556). The validity and scope of plaintiffs security interest were determined in the prior action. The relevant inquiry here is whether defendant has in its possession property described in the judgment rendered therein. We also agree with Supreme Court that plaintiffs responses to defendant’s demand for a bill of particulars were adequate. The demanded information available to plaintiff was supplied, and it made an appropriate statement of lack of knowledge as to the items to which it was unable to respond (see, Public Serv. Mut. Ins. Co. v Flatow, 64 AD2d 514). Order affirmed, with costs. Casey, J. P., Mikoll, Yesawich, Jr., Levine and Mercure, JJ., concur.