SPENCER v. CITY OF NEW YORK

ORDERED that the order is modified by deleting the provision thereof denying that branch of the motion which was to compel James Johnson and Alice Nelson to answer numbers 2, 3, 4, 9, 10, 15, 16, 17, 31, and 32 of their interrogatories and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements; and it is further,

ORDERED that the defendants' time to comply with the subject interrogatories is extended until 30 days after service upon them of a copy of this decision and order.

The Supreme Court erred when it refused to order James Johnson and Alice Nelson to answer numbers 2, 3, 4, 9, 10, 15, 16, 17, 31, and 32 of the plaintiffs' interrogatories, as those interrogatories requested evidence which was "material and necessary" in the prosecution of the action (Andson v. 302-304 Mott St. Assocs., 94 N.Y.2d 740, 746; CPLR 3101(a); see CPLR 3131). The Supreme Court properly refused to order Johnson and Nelson to answer the remainder of the interrogatories, as those interrogatories requested evidence which was not material and necessary (see Mijatovic v. Noonan, 172 A.D.2d 806; Lilling v. Syraouse Bros. Dev. Corp., 114 A.D.2d 938).

RITTER, J.P., FEUERSTEIN, O'BRIEN, H. MILLER and TOWNES, JJ., concur.