| Banigan v Hill |
| 2008 NY Slip Op 09543 [57 AD3d 463] |
| December 2, 2008 |
| Appellate Division, Second Department |
| Lawrence Banigan, Appellant, v Stephen R. Hill,Respondent. |
—[*1]
In an action, inter alia, to recover damages for breach of contract and fraud, the plaintiff appeals, aslimited 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 toCPLR 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 ofdirecting him to produce tax documents for the tax years 2004 through 2006, item No. 2 of thediscovery demand dated October 8, 2007, and item Nos. 2, 3, 4, 4 (a), 5, 5 (a), and 8 of thediscovery demand dated October 24, 2007.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thosebranches of the defendant's motion which were pursuant to CPLR 3124 to compel the plaintiff tocomply with item No. 1 of the discovery demand dated October 8, 2007, and item Nos. 1 and 10 ofthe discovery demand dated October 24, 2007, to the extent of directing him to produce taxdocuments 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, 2007are denied.
The Supreme Court improperly granted that branch of the defendant's motion which sought toproduce the plaintiff's tax returns and related tax documents for the tax years 2004 through 2006. Thedefendant failed to meet his burden of showing that the relevant information possibly contained in theplaintiff's tax documents for the tax years 2004 through 2006 cannot be obtained from any alternativesource, such as other financial or business records (see Corporate Interiors v Pappas, 293AD2d 640, 641 [2002]; Abbene v Griffin, 208 AD2d 483 [1994]; Consentino vSchwartz, 155 AD2d 640, 641 [1989]).[*2]
Furthermore, the Supreme Court improperly granted thatbranch of the defendant's motion which was to compel the plaintiff to produce certain documentssought in item No. 2 of the demand dated October 8, 2007, and item Nos. 2, 4 (a), 5, and 10 of thedemand dated October 24, 2007 since there was no showing that these documents were in existence atthe time the motion was made (see Jonassen v A.M.F., Inc., 104 AD2d 484, 486 [1984]).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 BronxvilleTowers Apts. Corp., 48 AD3d 551, 552 [2008]; Ritchie v Carvel Corp., 180 AD2d786, 788 [1992]). Finally, the plaintiff complied with item Nos. 3 and 8 of the demand dated October24, 2007. Skelos, J.P., Dillon, Carni and Leventhal, JJ., concur.