DONALD RUBIN, INC. v. SCHWARTZ

In this action for damages arising from defendants' alleged breach of a contract to provide consulting and administrative services, this Court previously found "a reasonable possibility that evidence with respect to [plaintiffs'] mitigation of damages will be relevant at trial" and reversed the IAS Court's denial of a motion to compel plaintiffs to respond to interrogatories, which included demands for production of tax and other financial information ( 191 A.D.2d 171, 172). The instant motion was made after defendants refused to agree to a proposed confidentiality agreement.

The order is appealable as it "affects a substantial right" (CPLR 5701 [a] [2] [v]; see, e.g., 85th St. Rest. Corp. v Sanders, 194 A.D.2d 324). Nor was plaintiffs' motion untimely, since it claimed that matter requested was privileged under CPLR 3101 ( Corriel v. Volkswagen of Am., 127 A.D.2d 729, 730).

The court properly denied plaintiffs' motion for a protective order as they failed to establish that the documents were confidential or privileged ( see, Liga v. Long Is. R.R., 121 A.D.2d 606, appeal dismissed 68 N.Y.2d 911), and defendants had, in the previous appeal, addressed the "strong * * * necessity and desirability" for the information sought ( Walter Karl, Inc. v Wood, 161 A.D.2d 704, 705).

The court also properly refused to dismiss the action as there was no showing that the default was deliberate, contumacious or a wilful disregard of the prior order ( see, Cinelli v. Radcliffe, 35 A.D.2d 829). Nor does plaintiffs' appeal warrant sanctions pursuant to 22 N.Y.CRR part 130.

Concur — Rosenberger, J.P., Rubin, Ross, Nardelli and Mazzarelli, JJ.