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Allen v. Crowell-Collier Publishing Co.

Court of Appeals of New York

January 17, 1968, Argued ; February 21, 1968, Decided

No Number in Original


 [*405]  [**431]  [***451]    The plaintiffs (upwards of 150 in number) are former employees who had worked in the defendant's plant in Springfield, Ohio. Discharged in December, 1956, when the defendant suspended publication of Collier's and Woman's Home Companion, they sue for severance and retirement pay. It is their claim that the defendant had "established and announced to its employees, including plaintiffs, and [had] carried out a policy and practice" of making severance -- or retirement -- payments upon the termination of employment and that they had "started or continued in defendant's employ", knowing [****6]  of and relying upon this policy.

Following joinder of issue, the plaintiffs submitted certain interrogatories to the defendant pursuant to CPLR 3101 and 3130, seeking information about the defendant's practices, current and past, with regard to severance and retirement pay, both at its Springfield plant and at its other plants and offices. The plaintiffs, who were nonunion employees, also seek to inquire about collective bargaining agreements of the defendant and, in addition, request information concerning practices in the publishing business in general. All this information is necessary, they say, to show that the defendant, although it contends otherwise, had an over-all, uniform policy at its various  [*406]  plants and offices -- "consistent" with procedures in the publishing business generally -- in regard to severance and retirement pay, whether or not it treated its nonunion employees differently from those who belonged to a union.

The defendant moved to strike most of the interrogatories as not material and necessary to the resolution of the issues; no contention was or is made that the interrogatories are burdensome, seek privileged information or are in any other [****7]  respect improper. The court at Special Term granted the defendant's motion almost in its entirety. The Appellate Division, by a divided court, affirmed and granted leave to appeal on a  [**432]  certified question. In addition to urging its position that the information sought is not "material and necessary" within the meaning of CPLR 3101, 1 the defendant contends that the order below, striking the interrogatories, rested in discretion and is beyond our power of review.

 [***452]  ] The courts do undoubtedly possess a wide discretion to decide whether information sought is "material and necessary" to the prosecution or defense of an action (see, e.g., Paliotto v. Hartman, 2 A D 2d 866) but that discretion is not unlimited.  Where, as here, an issue exists as to whether there has been an abuse of discretion,  [****8]  a reviewable question of law is presented. Indeed, the parties have argued the question before us solely as one of law, and so the courts below have decided it, in accordance, we note, with generally accepted practice.  (See, e.g., Matter of Rothschild, 298 N. Y. 538; Solomon v. La Guardia, 295 N. Y. 970; Drake v. Herrman, 261 N. Y. 414, 416; see, also, Di Russo v. Kravitz, 19 N Y 2d 1012; Cohen and Karger, Powers of the New York Court of Appeals, §§ 88, 157, 158.)

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21 N.Y.2d 403 *; 235 N.E.2d 430 **; 288 N.Y.S.2d 449 ***; 1968 N.Y. LEXIS 1598 ****

Lillian Allen et al., Appellants, v. Crowell-Collier Publishing Company, Respondent

Prior History:  [****1]   Allen v. Crowell-Collier Pub. Co., 26 A D 2d 516, reversed.

Appeal, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of said court, entered June 9, 1966, which affirmed, by a divided court, an order of the Supreme Court at Special Term (Peter A. Quinn, J.), entered June 25, 1964 in New York County, granting, in part, a motion by defendant to strike certain portions of plaintiffs' interrogatories. The following question was certified: "Was the order of the Supreme Court, entered on June 25, 1964, which was affirmed by order of the Appellate Division, entered in the office of the Clerk on June 9, 1966, properly made?"

Disposition: Order reversed, etc.


disclosure, interrogatories, retirement, employees, severance, courts, plant

Civil Procedure, Discovery & Disclosure, Disclosure, Mandatory Disclosures, Discovery, Relevance of Discoverable Information, Criminal Law & Procedure, Appeals, Reviewability, General Overview, Standards of Review, Abuse of Discretion, Abuse of Discretion, Pretrial Matters