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Nasca v. D.M.R. Industries

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


February 16, 2010

DEAN NASCA, APPELLANT,
v.
D.M.R. INDUSTRIES, INC., RESPONDENT.

In an action, inter alia, to recover damages for breach of contract, breach of warranty, and fraud, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Kerins, J.), dated September 24, 2008, as denied those branches of his motion which were to compel the defendant to comply with certain demands for disclosure and to respond to interrogatories and granted that branch of the defendant's cross motion which was for a protective order with regard to the interrogatories.

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.

MARK C. DILLON, J.P., JOSEPH COVELLO, HOWARD MILLER, CHERYL E. CHAMBERS, JJ.

(Index No. 27397/06)

DECISION & ORDER

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court properly denied that branch of the plaintiff's motion which was to compel the defendant to comply with his demand for disclosure of its tax returns for the year 2000. The plaintiff failed to show that the information contained in the defendant's tax returns was indispensable to his claim and could not be obtained from other sources (see Pugliese v Mondello, 57 AD3d 637, 639-640; Benfeld v Fleming Props., LLC, 44 AD3d 599, 600).

Since the plaintiff had already served the defendant with a demand for a bill of particulars, CPLR 3130(1) precluded the plaintiff from serving the defendant with a set of interrogatories (see Hyman & Gilbert v Greenstein, 138 AD2d 678, 681). Accordingly, the Supreme Court properly denied that branch of the plaintiff's motion which was to compel the defendant to respond to those interrogatories, and properly granted that branch of the defendant's cross motion which was for a protective order with regard to those interrogatories.

The plaintiff's remaining contentions are without merit.

DILLON, J.P., COVELLO, MILLER and CHAMBERS, JJ., concur.

20100216

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