Sam Shaw v. Bressler , 688 N.Y.S.2d 525 ( 1999 )

—Orders, Supreme Court, New York County (Martin Evans, J.H.O.), entered on or about October 9 and 14, 1998, which, in an action between photographers over ownership of photographic images, granted defendant’s oral motions at trial for disclosure of all photographic images in plaintiffs possession, estimated by plaintiff to number 500,000, and, inter alia, directed that such images be reviewed at a rate of 1,000 a day at the Rockland County courthouse, commencing on October 21, 1998, from 10:00 a.m. to 4:30 p.m., but not on scheduled trial days, unanimously affirmed, without costs.

Ordering plaintiff to produce all of the 500,000 photographs in his possession was a proper exercise of discretion, where plaintiff had been given the opportunity to review all of the photographs in defendant’s possession, and, up until the time of the orders on appeal, did nothing to dispel defendant’s and the Judicial Hearing Officer’s belief that he was in possession of only the far lesser number of photographs he had already produced. Inspection of the photographs clearly would be helpful in resolving the parties’ conflicting claims of authorship, expressly left unresolved in the motion court’s pretrial orders. Plaintiff’s reliance on authorities disallowing disclosure after the filing of a note of issue absent a showing of extraordinary circumstances is misplaced in this very unusual action, in which no note of issue was ever filed and disclosure has apparently been conducted only during the course of trial. Concur— Sullivan, J. P., Wallach, Lerner, Mazzarelli and Buckley, JJ.