Gambino v. St. Mary's Hospital of the Sisters of Charity , 37 A.D.2d 903 ( 1971 )

Order affirmed, with costs to plaintiffs, Goldman, P. J., not participating. Memorandum: In affirming the order of Special Term, we note that the only permissible method for challenging any disclosure device is to move for a protective order under the provisions of CPLR 3103 (Coffey v. Orbachs, Inc., 22 A D 2d 317). While it appears that the plaintiffs have now obtained the information they, sought from the defendant, the defendant’s failure to heed this rule needlessly extended the discovery proceedings and was not in accord with the liberal and full disclosure procedure provided for in article 31 of the CPLR. Accordingly, costs and taxable disbursements should be awarded to the plaintiffs (CPLR 3107, 8301; cf. Goldner v. Lendor Structures, 29 A D 2d 978). All concur except Moule, J., who concurs in the affirmance but dissents as to the awarding of costs to plaintiffs on the ground that plaintiffs were as responsible as defendant for needlessly extending the discovery proceedings. (Appeal from order of Monroe Special Term denying motion to strike answer and compel disclosure in negligence action.) Present— Goldman, P. J., Marsh, Witmer, Moule and Cardamone, JJ.