| Gitlin v Chirinkin |
| 2010 NY Slip Op 01920 [71 AD3d 728] |
| March 9, 2010 |
| Appellate Division, Second Department |
| Eduard Gitlin, Respondent, v Alex Chirinkin et al.,Appellants, et al., Defendant. |
—[*1] Barbara Lee Ford, Floral Park, N.Y., for respondent.
In an action, inter alia, to recover damages for fraud, the defendants Alex Chirinkin, NellieChirinkin, Alex Chirinkin, LLC, and Alex Chirinkin Enterprises, LLC, appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Nassau County (Bucaria, J.), enteredJuly 7, 2009, as denied their motion to compel the plaintiff to produce certain disclosure and fora protective order pursuant to CPLR 3103.
Ordered that the order is affirmed insofar as appealed from, with costs.
The Supreme Court did not improvidently exercise its discretion in denying that branch ofthe appellants' motion which was to compel the plaintiff to disclose his tax returns and bankrecords. The appellants failed to demonstrate that any information in the tax returns wasindispensable to their defense or counterclaim and could not be obtained from other sources (see Pugliese v Mondello, 57 AD3d637 [2008]; Latture v Smith, 304 AD2d 534, 536 [2003]; see also Banigan v Hill, 57 AD3d463 [2008]; Benfeld v FlemingProps., LLC, 44 AD3d 599 [2007]). Moreover, the appellants failed to demonstrate thatthe plaintiff's bank records were material and necessary to their defense or counterclaim (seeCPLR 3101 [a]; Auerbach vKlein, 30 AD3d 451 [2006]).
The plaintiff sustained his burden of demonstrating that the appellants should be required todisclose their tax returns (see Kerman vMartin Friedman, C.P.A., P.C., 21 AD3d 997 [2005]). In addition, the plaintiff alsoclearly demonstrated that the bank records he requested of the appellants were material andnecessary to the pursuit of his claims that the defendants had defrauded him. Accordingly, theSupreme Court providently exercised its discretion in denying that branch of the appellants'motion which was for a protective order pursuant to CPLR 3103. Fisher, J.P., Santucci,Angiolillo, Hall and Lott, JJ., concur.