Rinaldov.Syracuse University

Appellate Division of the Supreme Court of New York, Fourth DepartmentJan 16, 1976
51 A.D.2d 675 (N.Y. App. Div. 1976)

January 16, 1976

Appeal from the Onondaga Supreme Court.

Present — Marsh, P.J., Moule, Cardamone, Simons and Mahoney, JJ.

Order unanimously affirmed, with costs. Memorandum: We agree with Special Term that third-party plaintiff's responses to interrogatories served upon it by third-party defendants were not unresponsive nor may they be construed to be a willful failure to disclose information sufficient to impose the drastic remedy of preclusion (CPLR 3126; see Livingston v Mayes, 23 A.D.2d 814; Practice Commentary, Siegel, McKinney's Cons. Laws of NY, Book 7B, CPLR 3126, p 646-650). Although CPLR 3133 (subd [a]) requires that objections to interrogatories be made within 10 days after service of the interrogatories, where the objection to an interrogatory involves a CPLR 3101 immunity, the 10-day time limitation is inapplicable (Practice Commentary, Siegel, McKinney's Cons. Laws of NY, Book 7B, CPLR 3133, p 682; see Coffey v Orbachs, Inc., 22 A.D.2d 317, 320). Interrogatories Nos. 13 and 14 clearly deal with privileged matter (CPLR 3101, subd [b]). While it might have been better practice for the third-party plaintiff to have moved within the 10-day time period in CPLR 3133 (subd [a]) such time limitation does not override the more important considerations underlying the immunity provisions of CPLR 3101.