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Banigan v. Hill

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 2, 2008

LAWRENCE BANIGAN, APPELLANT,
v.
STEPHEN R. HILL, RESPONDENT.

In an action, inter alia, to recover damages for breach of contract and fraud, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Bucaria, J.), dated February 29, 2008, as granted those branches of the defendant's motion which were pursuant to CPLR 3124 to compel him to comply with Item No. 1 of the discovery demand dated October 8, 2007, and Item Nos. 1 and 10 of the discovery demand dated October 24, 2007, to the extent of directing him to produce tax documents for the tax years 2004 through 2006, Item No. 2 of the discovery demand dated October 8, 2007, and Item Nos. 2, 3, 4, 4(a), 5, 5(a), and 8 of the discovery demand dated October 24, 2007.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PETER B. SKELOS, J.P., MARK C. DILLON, EDWARD D. CARNI and JOHN M. LEVENTHAL, JJ.

(Index No. 14076/06)

DECISION & ORDER

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the defendant's motion which were pursuant to CPLR 3124 to compel the plaintiff to comply with Item No. 1 of the discovery demand dated October 8, 2007, and Item Nos. 1 and 10 of the discovery demand dated October 24, 2007, to the extent of directing him to produce tax documents for the tax years 2004 through 2006, Item No. 2 of the discovery demand dated October 8, 2007, and Item Nos. 2, 3, 4, 4(a), 5, 5(a), and 8 of the discovery demand dated October 24, 2007, are denied.

The Supreme Court improperly granted that branch of the defendant's motion which sought to produce the plaintiff's tax returns and related tax documents for the tax years 2004 through 2006. The defendant failed to meet his burden of showing that the relevant information possibly contained in the plaintiff's tax documents for the tax years 2004 through 2006 cannot be obtained from any alternative source, such as other financial or business records (see Corporate Interiors v Pappas, 293 AD2d 640, 641; Abbene v Griffin, 208 AD2d 483; Consentino v Schwartz, 155 AD2d 640, 641).

Furthermore, the Supreme Court improperly granted that branch of the defendant's motion which was to compel the plaintiff to produce certain documents sought in Item No. 2 of the demand dated October 8, 2007, and Item Nos. 2, 4(a), 5, and 10 of the demand dated October 24, 2007, since there was no showing that these documents were in existence at the time the motion was made (see Jonassen v A.M.F., Inc., 104 AD2d 484, 486). Moreover, that branch of the defendant's motion which sought information under Item Nos. 4 and 5(a) of the demand dated October 24, 2007, should have been denied as these requests were overly broad (see Taji Communications, Inc. v Bronxville Towers Apts. Corp., 48 AD3d 551, 552; Ritchie v Carvel Corp., 180 AD2d 786, 789). Finally, the plaintiff complied with Item Nos. 3 and 8 of the demand dated October 24, 2007.

SKELOS, J.P., DILLON, CARNI and LEVENTHAL, JJ., concur.

20081202

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