Opinion
11686N M-1540 Index 154345/15
06-18-2020
David DEMURJIAN, et al., Plaintiffs–Appellants, v. Michael DEMURJIAN, et al., Defendants–Appellants, 187 Street Mazal Manager LLC, Defendant–Respondent. 661 West 187 Street LLC, Cross-Claim Defendant-Appellant.
Marshall Dennehey Warner Coleman & Goggin, P.C., New York (Nicholas P. Chrysanthem of counsel)), for David Demurjian and Richard Demurjian, appellants. Davidoff Hutcher & Citron LLP, New York (Joshua S. Krakowsky of counsel), for Michael Demurjian and 661 West 187 Street LLC, appellants. Solomon & Siris, P.C., Garden City (Bill Tsevis of counsel), for respondent.
Marshall Dennehey Warner Coleman & Goggin, P.C., New York (Nicholas P. Chrysanthem of counsel)), for David Demurjian and Richard Demurjian, appellants.
Davidoff Hutcher & Citron LLP, New York (Joshua S. Krakowsky of counsel), for Michael Demurjian and 661 West 187 Street LLC, appellants.
Solomon & Siris, P.C., Garden City (Bill Tsevis of counsel), for respondent.
Renwick, J.P., Gische, Kapnick, Kern, Moulton, JJ.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered January 28, 2019, which granted the motion of defendant 187 Street Mazal Manager LLC (Mazal) to compel discovery, unanimously modified, on the law and on the facts, to deny Mazal's motion with respect to the production of tax returns, without prejudice to renewal, and otherwise affirmed, without costs.
The motion court providently deemed the appealing parties' objections waived under CPLR 3122 as a result of their failure to respond timely to Mazal's demands for production (see Haller v. North Riverside Partners, 189 A.D.2d 615, 616, 592 N.Y.S.2d 316 [1st Dept. 1993] ). We modify, however, with respect to Mazal's demands for the appealing parties' tax returns, as objections to "palpably improper" demands are not waived ( id. [internal quotation marks omitted] ).
A demand for the production of tax returns is disfavored and requires "a strong showing of necessity," and the inability to obtain the information from other sources ( Weingarten v. Braun, 158 A.D.3d 519, 520, 68 N.Y.S.3d 707 [1st Dept 2018] [internal quotation marks omitted] ). Here, the failure "to identify the particular information the tax returns ... will contain and its relevance to the claims made" ( id. ) should have been sufficient to deny Mazal's motion to compel. Indeed, the tax returns were not necessary to determine whether plaintiffs acquired an interest in the properties in 1994 or retained it thereafter—the reason the motion court gave for granting the motion. However, Mazal argues that the tax returns could be relevant to its affirmative defenses of laches, estoppel, waiver, ratification, and consent, and the motion court did not pass on this issue. As a result, although Mazal did not sufficiently show the inability to obtain the information sought from other sources or, indeed, what specific information the appealing parties' tax returns will show, we grant leave to renew upon a proper showing (see Williams v. New York City Hous. Auth., 22 A.D.3d 315, 316, 802 N.Y.S.2d 55 [1st Dept. 2005] ).
Motion to strike granted and to the extent that references to David Demurjian's deposition are deemed stricken
from plaintiffs' reply brief at page 5 n 2, and otherwise denied.