SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

969
CA 16-00098
PRESENT: SMITH, J.P., CARNI, LINDLEY, DEJOSEPH, AND SCUDDER, JJ.


MARGARITA ZULEY, M.D., PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ELIZABETH WENDE BREAST CARE, LLC, STAMATIA
DESTOUNIS, M.D., PHILIP MURPHY, M.D., POSY
SEIFERT, D.O., PATRICIA SOMERVILLE, M.D.,
DEFENDANTS-APPELLANTS,
ET AL., DEFENDANT.


UNDERBERG & KESSLER LLP, BUFFALO (THOMAS F. KNAB OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

WOODS OVIATT GILMAN LLP, ROCHESTER (BRIAN J. CAPITUMMINO OF COUNSEL),
FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Matthew
A. Rosenbaum, J.), entered November 16, 2015. The order granted the
motion of plaintiff to compel defendants-appellants to respond to
requests two through five of plaintiff’s second notice to produce.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: On a prior appeal, we modified the order granting
summary judgment dismissing the complaint in its entirety by
reinstating the cause of action for unjust enrichment against
defendants-appellants, and we remitted the matter to Supreme Court to
rule on plaintiff’s motion to compel further discovery, which it had
determined was moot (Zuley v Elizabeth Wende Breast Care, LLC, 126
AD3d 1460, amended on rearg 129 AD3d 1556). The court granted the
motion, and we affirm. It is well established that the court “is
vested with broad discretion to supervise discovery and to determine
what disclosure is material and necessary” (Cain v New York Cent. Mut.
Fire Ins. Co., 38 AD3d 1344, 1344). Generally, “[a]bsent an abuse of
discretion, we will not disturb the court’s control of the discovery
process” (McCarter v Woods, 106 AD3d 1540, 1541 [internal quotation
marks omitted]). We perceive no abuse of discretion in this case.
Although we may substitute our discretion for that of the trial court,
even in the absence of an abuse of discretion (see Smalley v Harley-
Davidson Motor Co., Inc., 115 AD3d 1369, 1370), we decline to do so
                             -2-                  969
                                            CA 16-00098

here.




Entered: November 10, 2016         Frances E. Cafarell
                                   Clerk of the Court