On or about February 26, 2004 the Defendant furnished the Plaintiff with a proposal to perform painting services at the Plaintiff's home located at 175 Cove Road, Oyster Bay, New York. The areas in which work was to be performed, as proposed, were the main entrance and stairs to the second floor landing, the second floor hall, the solarium, a guest bathroom and exterior trim. The Plaintiff accepted this proposal, with the exception of the guest bathroom. According to the Plaintiff, the parties agreed that the Plaintiff would pay the Defendant $2,000.00 per week and the balance due for the interior work upon completion; the exterior work would also be paid for upon completion.

The Plaintiff claims that the Defendant began work on March 8, 2004 and continued until April 7, 2004. In that period of time, the Plaintiff claims, the Defendant performed work in the entrance hall, the stairs to the second floor and the second floor hallway, and that he paid the Defendant $8,000.00 in accordance with their agreement. The Plaintiff further claims that the Defendant failed to appear to perform any work at his home on April 7, 2004 and has failed and refused to return to complete the job for which he had been hired and paid. The Plaintiff also alleges that the work the Defendant did performed was defective and unacceptable.

Based on the foregoing, the Plaintiff commenced this action for breach of contract, trespass and an unspecified intentional tort, or about April 21, 2004. Issue was joined on or about May 7, 2004. On May 13, 2004 the Plaintiff served upon the Defendant a Notice to Take Deposition Upon Oral Examination, a Notice for Discovery and Inspection and Plaintiff's First Set of Interrogatories.

When, by June 22, 2004, the Defendant had not responded to any of the foregoing, the [*2]Plaintiff ^[FN1] sent a letter to counsel for the Defendant indicating that the Defendant had failed to serve a Bill of Particulars or a response to the Notice for Discovery and Inspection. The letter further indicated that counsel should contact the Plaintiff if additional time was needed to respond and that the matter could be addressed at a conference previously scheduled with the court on June 28, 2004.

The Plaintiff alleges that at the conference on June 28, 2004 he and counsel for the Defendant stipulated, on the record, that the Defendant would respond to the Plaintiff's Notice for Discovery and Inspection and answer the Interrogatories on or before July 12, 2004. The Plaintiff fails to submit a copy of this alleged stipulation. The Plaintiff does submit a copy of a letter dated June 28, 2004, he alleges to have sent to counsel for the Defendant, memorializing their in-court stipulation and further indicating that the Plaintiff would appear for an examination before trial on July 21, 2004.

As alleged by the Plaintiff, when no discovery response was had from the Defendant by July 13, 2004, the Plaintiffsent another letter to defense counsel indicating that he would not be appearing for the deposition on July 21, 2004 and that it was his intention to move for sanctions, including the striking of the Defendant's Answer. The Plaintiff further indicated that these issues would be addressed at a conference with the court scheduled for July 26, 2004.

At the conference held on July 26, 2004 the parties entered into a Discovery Conference Stipulation and Order. The Plaintiff represents that this "order required defendant to respond to Discovery and answer Interrogatories on or before August 13, 2004, and that the defendant's responses be served by overnight mail." (Greenfield Affirmation 8/26/04, ¶ 8) A review of the order reveals, however, that specific reference was made to the Defendant serving a Bill of Particulars and Interrogatories by overnight mail, on or before August 13, 2004, made no such reference to responding to a Notice for Discovery and Inspection. In fact, paragraph 6 of the order form, wherein counsel could have entered compliance with various discovery demands, was left blank.

Nevertheless, Plaintiff acknowledges receiving "papers purporting to include defendant's responses to Discovery and Interrogatories" (Greenfield Affirmation 8/26/04,¶ 9) by overnight mail on August 16, 2004. Believing the Defendant's responses to be insufficient, the Plaintiff returned these documents to the Defendant on the same day. The Plaintiff also sent a cover letter indicating, inter alia, that it was Plaintiff's belief that the Defendant's responses which objected to certain of the Plaintiff's inquiries and/or demands were untimely and defective. The Plaintiff further indicated that he would extend one (1) week to the Defendant to send him responses the Plaintiff deemed proper or he would make a motion to sanction the Defendant pursuant to CPLR § 3126. In response, counsel for the Defendant wrote to Plaintiff on August 17, 2004 indicating that Plaintiff failed to indicate the particular responses with which he had a problem and that in counsel's opinion the responses were proper. On August 19, 2004 the Plaintiff acknowledged the parties' differing views on the subject and again made reference to his bringing a motion pursuant to CPLR § 3126.

On August 26, 2004 the Plaintiff brought this motion seeking the imposition of sanctions pursuant to CPLR § 3126 for the Defendant's alleged refusal to comply with the discovery order [*3]of this court. The Defendant opposed that motion, which resulted in an order dated December 9, 2004 granting the Plaintiff's motion unless the Defendant appeared for an examination before trial within forty-five days.

When the Defendant failed to appear for the deposition, the Plaintiff moved for an order granting him a judgment and setting the matter down for an assessment of damages. The Defendant opposed that motion, which was granted by an order dated June 28, 2005, setting the matter down for an assessment of damages on August 25, 2005. After inquest, on December 22, 2005, the Plaintiff was awarded a judgment in the sum of $8,000.00.

Cross appeals ensued, bringing up for review the aforesaid orders of December 9, 2004 and June 28, 2005. On February 7, 2007 the Appellate Term, 9th and 10th Judicial Districts, reversed the judgment, denied the Plaintiff's motion for the entry of a judgment based upon the Defendant's default in appearing at a court ordered examination before trial and remanded the Plaintiff's original motion seeking the imposition of sanctions pursuant to CPLR § 3126 for a de novo determination. Specifically, the Appellate Term indicated that such sanctions should not be imposed without this court first determining the validity of the objections raised by the Plaintiff to the discovery responses he received.

The Plaintiff argues that the Defendant's responses to item number 6 of his Notice for Discovery and Inspection and to nine (9) unspecified answers to the Interrogatories ^[FN2] posed, each of which state "Object, unduly burdensome and irrelevant", are improper due to the fact that the Defendant never moved for a protective order, pursuant to CPLR § 3103 and that such objections were raised far in excess of the twenty (20) days provided in CPLR § 3122 for stating such objections. The Plaintiff argues that given the extensions of time granted to provide responses, the Defendant waived the right to object to these demands and had no choice but to provide complete responses. The Plaintiff further argues that the Defendant failed to respond to item 11 of his Notice for Discovery and Inspection. The Plaintiff also argues that the balance of the Defendant's answers to his Interrogatories are "so vague and conclusory as to be meaningless" (Greenfield Affirmation 8/26/04,¶ 23) and that the answers to Interrogatories are not in proper form, failing to precede the answer with the question posed and not being executed by the Defendant under oath. The Plaintiff does not bother to submit copies of the Defendant's responses to which he objects.

In opposition, the Defendant alleges that his responses to the Plaintiff's demands, which he does submit to the court, were timely and appropriate. The Defendant argues, generally, that the extensions of time agreed to by the parties for the Defendant's responses extended the time for the Defendant to raise specific objections to the Plaintiff's demands. As to the Notice for Discovery and Inspection, the Defendant specifically argues that item number 6 is "completely irrelevant and immaterial ... [and] unduly burdensome" (Seres Affiramtion 10/8/04, ¶ 7), and that item number 11 fails to call for the production of documents and "fails to make any sense" (Seres Affiramtion 10/8/04, ¶ 8) rendering it impossible to answer. Regarding the Interrogatories, the Defendant acknowledges that he failed to set forth his answers in proper form, referring to these requirements as "inane procedural finepoints" (Seres Affiramtion 10/8/04, ¶ 9) and claims that [*4]the answers to the Interrogatories were signed and the truthfulness of those answers verified.

CPLR § 3101 sets forth the scope of appropriate disclosure and requires, with certain specified exceptions, "full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof...." The methods by which such discover is obtained, and/or resisted, are set forth in the remaining sections of Article 31.

CPLR § 3120 provides the mechanism by which a party may obtain the discovery and production of documents and things for inspection, testing, copying or photographing. Specifically, as here pertinent, "any party may serve on any other party a notice ... (i) to produce and permit the party seeking discovery, or someone acting on his or her behalf, to inspect, copy, test or photograph any designated documents or any things which are in the possession, custody or control of the party or person to be served...." CPLR § 3120(1)(i).

CPLR § 3122 provides the manner in which a party served with such a notice for discovery is to respond. Subparagraph (a) thereof requires:

Within twenty days of service of a notice or subpoena duces tecum under rule 3120 or section 3121, the party or person to whom the notice or subpoena duces tecum is directed, if that party or person objects to the disclosure, inspection or examination, shall serve a response which shall state with reasonable particularity the reasons for each objection. .... The party seeking disclosure under rule 3120 or section 3121 may move for an order under rule 3124 or section 2308 with respect to any objection to, or other failure to respond to or permit inspection as requested by, the notice or subpoena duces tecum, respectively, or any part thereof.

As is apparent from the foregoing, while "[a]t one time, the person from whom discovery and inspection was sought had the burden of moving for a CPLR 3103(a) protective order within ten days after the CPLR 3120 notice was served[;] [t]he CPLR now places the burden on the party seeking the discovery and inspection to obtain a court order. CPLR 3122(a) The party from whom disclosure is sought still must respond by stating, with reasonable particularity the reasons for each objection." Patrick M. Connors, Practice Commentaries, 2004 Main Volume, McKinney's C3120.10

There is appellate authority in the Fourth Judicial Department to the effect that where the responding party's time to furnish a response is extended, such extension applies to the responding party's time to raise objection to the demands pursuant to CPLR § 3122 as well. Kern v. City of Rochester, 261 AD2d 904, 689 NYS2d 842 (4th Dept. 1999) There is also authority in the Third Judicial Department to the contrary. In Saratoga Harness Racing, Inc. v. Roemer, 274 AD2d 887, 711 NYS2d 603 (3rd Dept. 2000) the court specifically rejected "defendant's contention that the parties' agreement to extend the time to respond to discovery demands-which occurred after the expiration of the 20-day period-resurrected defendant's right to object to plaintiff's demand." This court has not found any appellate authority in the Second Judicial Department taking one position or the other. While it is the opinion of this court that the rule enunciated by the Third Judicial Department is correct, such a determination need not be made to resolve the issues herein.

Even when the a defendant's responses to discovery demands pursuant to CPLR §§ 3120 or 3132 are untimely inquiry can still be made to determine if the requests are palpably improper. Fausto v. City of New York, 17 AD3d 520, 793 NYS2d 165 (2nd Dept. 2005); Marino v. County [*5]of Nassau, 16 AD3d 628, 791 NYS2d 438 (2nd Dept. 2005); Garcia v. Jomber Realty, Inc., 264 AD2d 809, 695 NYS2d 607 (2nd Dept. 1999) A request is palpably improper if it seeks information of a confidential and private nature that does not appear to be relevant to the issues in the case, Titleserv, Inc. v. Zenobio, 210 AD2d 314, 619 NYS2d 769 (2nd Dept. 1994); Grossman v. Lacoff, 168 AD2d 484, 562 NYS2d 724 (2nd Dept. 1990); Watson v. Esposito, 231 AD2d 512, 647 NYS2d 233 (2nd Dept. 1996), is overbroad and burdensome, Zambelis v. Nicholas, 92 AD2d 936, 460 NYS2d 360 (2nd Dept. 1983); Holness v. Chrysler Corp., 220 AD2d 936, 633 NYS2d 986 (2nd Dept. 1995); Harris v. City of New York, 211 AD2d 663, 622 NYS2d 289 (2nd Dept. 1995), or is wholly irrelevant to the issues in the case. Spancrete Northeast, Inc. v. Elite Associates, Inc., 148 AD2d 694, 539 NYS2d 441 (2nd Dept. 1989); Pagones v. Maddox, 172 AD2d 809, 569 NYS2d 180 (2nd Dept. 1991); Handy v. Geften Realty, Inc., 129 AD2d 556, 514 N.Y.s.2d 51 (2nd Dept. 1987)

It is against this backdrop that the court will review the Defendant's responses to the Plaintiff's discovery demands and determine what sanctions, if any, should be imposed against the Defendant.

The first response of which the Plaintiff complains is the Defendant's response to item number 6 of the Notice for Discovery and Inspection, which demands:

6. Defendant shall identify and produce all documents in which defendant is a party relating to the performance or potential performance of painting services and/or home improvements for year 2003, between the months of February and December, inclusive, and year 2002, from the month of January to present.

The Plaintiff suggests that this documentation "is relevant to ascertaining whether defendant is engaged in a pattern and practice, or scheme, whereby he takes the bulk of the money he is likely to get from consumers and then leaves the work site to move on to a new consumer and engage in the same conduct again, or where he leaves jobs prematurely when he has caused substantial collateral damage to the premises, or where defendant makes promises of performance that he fails to keep and leaves to avoid a future confrontation with the consumer." (Greenfield Affirmation 8/26/04,¶ 17) The court finds this demand to be palpably improper and the Defendant's response thereto appropriate.

As previously indicated, the Plaintiff brought this action to recover damages due to the Defendant's alleged failure to perform a contract for specific services to be rendered at the Plaintiff's home and due to the Defendant's alleged failure to perform those services properly. Stated simply, the Defendant either did or did not properly perform pursuant to the contract into which he entered with the Plaintiff, regardless of what he might or might not have done on other contracts, with other customers, over the course of the year and a half preceding his contract with the Plaintiff. This documentation sought by the Plaintiff will in now way result in the discovery "of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity." Allen v. Crowell-Collier Publishing Company, 21 NY2d 403, 288 NYS2d 449 (1968); Andon v. 302-304 Mott Street Associates, 94 NY2d 740, 709 NYS2d 873 (2000); Seltel, Inc. v. Channel Communications, Inc., 122 AD2d 628, 505 NYS2d 628 (1st Dept. 1986) ["Defendant may not, however, prove plaintiff's inadequate performance under the contract at issue by showing its failure under other purportedly similar contracts any [*6]more than plaintiff may prove the adequacy of its service to defendant by producing evidence of satisfactory service to other customer."]; Zohar v. Hair Club for Men Ltd., 200 AD2d 453, 607 NYS2d 5 (1st dept. 1994) ["The disclosure sought therein, regarding other purportedly similar contracts between the defendant and other individuals who are not parties to the underlying action, has no bearing on the validity of the particular release executed by the plaintiff herein and improperly requires concomitant disclosure respecting the defendant's performance under other contracts with other clients, which disclosures are neither material nor necessary, nor have the effect of sharpening the issues for trial ....]

The only other response to the Notice for Discovery and Inspection to which the Plaintiff specifically objects is the response to item number 11, which demands "Defendant shall identify all individuals and entities relating to the allegations set forth in paragraph 4 of the answer." Paragraph 4 of the Defendant's Answer alleges that the Plaintiff's Complaint "fails to sufficiently state a cause of action upon which the relief requested can be granted to the Plaintiff as against the Defendant, JOHN SCRIVA." The Defendant responded to demand number 11 by indicating that it "Does not call for production of documents."

The fact that the demand does not request the production of documents, and seeks the names and addresses of individuals, does not render the demand improper. Kivlehan v. Waltner, 36 AD3d 597, 827 NYS2d 290 (2nd Dept. 2007; Bongiorno v. Livingston, 20 AD3d 379, 799 NYS2d 98 (2nd Dept. 2005); Schachat v. Bell Atlantic Corp., 282 AD2d 329, 723 NYS2d 465 (1st Dept. 2001) What renders the demand improper is that it cannot possibly be complied with by the Defendant. Whether or not the Plaintiff's Complaint fails state a cause of action is a question to be determined by the court, as a matter of law. There are no "individuals and entities" relating to this allegation. The court, therefore, finds this demand to be palpably improper and the Defendant is excused from responding to same.

As to the balance of the Plaintiff's Notice for Discovery and Inspection, the court does not find the responses to be improper or inadequate.

With regard to the Defendant's answers to the Plaintiff's Interrogatories numbered 6a, 6b, 7a, 7b, 11a, 11b, 11c, 11d and 22a, the court finds these demands to be palpably improper in that they too seek information concerning panting, wallpapering and/or home improvement jobs the Defendant may have had with other customers over an approximately two (2) year period. As indicated, such information is neither material nor relevant to this "relatively straightforward contract action." Seltel, Inc. v. Channel Communications, Inc., supra . As to all of the other answers to Interrogatories propounded by the Defendant, the court does not find them to be "so vague and conclusory as to be meaningless," (Greenfield Affirmation 8/26/04,¶ 23) as the Plaintiff baldly alleges.

The Plaintiff is correct, however, that the Defendant's Response to Interrogatories is improper as to form. While counsel for the Defendant might find this to be an annoyance, CPLR § 3133(b) mandates that "each answer shall be preceded by the question to which it responds" and that the answers shall be "under oath by the party served," not merely signed. Given the extensive history herein and the multiple opportunities the Plaintiff gave the Defendant to correct the deficiencies in his responses, without success, the court finds the Defendant's failure to provide sworn answers to the Interrogatories, in proper form, to have been wilful and deliberate.

Accordingly, the Plaintiff's motion seeking the imposition of sanctions against the [*7]Defendant, pursuant to CPLR § 3126, is conditionally granted; and, it is hereby

ORDERED, that within thirty (30) days of the service of this order, with Notice of Entry, the Defendant shall serve upon the Plaintiff answers to the Plaintiff's Interrogatories which are sworn to by the Defendant and in proper form; and, it is further

ORDERED, that if the Defendant fails to provide answers as ordered hereinabove, the Defendant's Answer shall be stricken.

Any relief not specifically granted herein is denied.

This constitutes the decision and order of this court.

Dated: Hempstead, New York

May 3, 2007

___________________________

ANDREW M. ENGEL

J.D.C.