
    Louis Neos et al., Respondents-Appellants, v Gus Neos et al., Appellants-Respondents.
    [623 NYS2d 12]
   —In an action, inter alia, to impose a constructive trust, (1) the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Rutledge, J.), dated June 16, 1993, as denied their cross motion for summary judgment dismissing the complaint pursuant to CPLR 3126, on condition that the plaintiffs produce certain documents within 60 days after service upon them of a copy of the order, and (2) the plaintiffs cross-appeal, as limited by their brief, from so much of the same order as (a) denied their motion for a protective order pursuant to CPLR 3133, (b) directed them to respond to the defendants’ fourth set of interrogatories, and (c) conditionally denied the defendants’ cross motion for summary judgment dismissing the complaint.

Ordered that the order is modified by (1) deleting the provision thereof which denied the plaintiffs’ motion for a protective order, and substituting therefor a provision granting the plaintiffs’ motion, and (2) deleting the provision thereof which conditionally denied the defendants’ cross motion for summary judgment dismissing the complaint and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, with costs to the plaintiffs.

Contrary to the defendants’ contention, the specific requests in their fourth set of interrogatories to the plaintiffs Louis and Theodore Neos which are the subject of the plaintiff’s motion for a protective order, as well as the documents which the court directed the plaintiffs to produce, are neither material nor necessary to the prosecution or defense of the action. Therefore, the Supreme Court erred when it denied the plaintiffs’ motion for a protective order and ordered the plaintiffs to produce the requested documents as a condition for the denial of the defendants’ cross motion (see, Roberts v Modica, 92 AD2d 563; see also, Alpha Intl. Assocs. v Goldberg, 76 AD2d 873; cf., Allen v Crowell-Collier Publ. Co., 21 NY2d 403, 406-407).

There is no merit to the defendants’ remaining contentions. Miller, J. P., O’Brien, Santucci and Florio, JJ., concur.  