Opinion
July 1, 1993
Appeal from the Supreme Court, Albany County (Kahn, J.).
Initially, we concur in Supreme Court's conclusion that plaintiffs would not be entitled to recover against Honeybill under any reasonable view of the facts alleged in the complaint (see, Quail Ridge Assocs. v. Chemical Bank, 162 A.D.2d 917, 918, lv dismissed 76 N.Y.2d 936; Giannelli v. St. Vincent's Hosp. Med. Ctr., 160 A.D.2d 227, 231) and, accordingly, affirm the October 2, 1992 order dismissing the complaint against him. Viewed in the best possible light, the complaint alleges nothing more than the fraudulent inducement and subsequent breach of plaintiffs' contract with WMHT; notably, none of Honeybill's alleged acts were performed other than in his capacity as an employee of WMHT and in connection with WMHT's contractual relationship with plaintiffs (see, Murtha v. Yonkers Child Care Assn., 45 N.Y.2d 913; McKernin v. Fanny Farmer Candy Shops, 176 A.D.2d 233; Quail Ridge Assocs. v. Chemical Bank, supra). Further, none of the allegations make out the kind of outrageous conduct required for a cause of action for intentional infliction of emotional distress (see, Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303).
We are also in essential agreement with Supreme Court's September 25, 1992 order granting the motions of WMHT and Merklinger to vacate plaintiffs' notice for discovery and inspection, granting Merklinger's motion to compel service of a further bill of particulars, and denying plaintiffs' cross motion to preclude Merklinger from giving evidence at trial of the items of which particulars were not delivered. In view of the deference to be given a trial court's exercise of discretion in supervising discovery and inspection (see, Hirschfeld v. Hirschfeld, 69 N.Y.2d 842, 844), we find no reason to disturb Supreme Court's finding that plaintiffs' notice was overbroad and burdensome and that Merklinger's demand for a further bill of particulars, not the subject of a timely motion to vacate, was by no means "palpably improper" (State of New York v. General Elec. Co., 173 A.D.2d 939, 941). However, in view of Merklinger's consent to a 30-day conditional order of preclusion, Supreme Court erred in denying plaintiffs' cross motion in its entirety. Similarly, although upon proper demand Supreme Court would have been justified in vacating plaintiffs' entire notice for a bill of particulars, WMHT moved to vacate only certain specified demands. The order entered August 17, 1992 must be modified accordingly.
Plaintiffs' other arguments have been considered and rejected.
Mikoll, J.P., Yesawich Jr., Crew III and Harvey, JJ., concur. Ordered that the order entered October 2, 1992 is affirmed, with costs to defendant Stephen Honeybill. Ordered that the order entered September 25, 1992 is modified, on the law, without costs, by reversing so much thereof as denied plaintiffs' cross motion to preclude defendant Thomas Merklinger from giving evidence at trial of the items of which particulars were not delivered; cross motion granted to the extent that plaintiffs are granted a 30-day order of preclusion against said defendant; and, as so modified, affirmed. Ordered that the order entered August 17, 1992 is modified, on the law, without costs, by reversing so much thereof as vacated the demands of plaintiffs' May 14, 1992 notice for a bill of particulars numbered 2, 4, 5, 20, 21, 23 (a) and 24, and, as so modified, affirmed.