Orser v. Wholesale Fuel Distributors-CT, LLC

Full title: BRYAN D. ORSER Plaintiff v. WHOLESALE FUEL DISTRIBUTORS-CT, LLC, Defendant…

Court: Supreme Court, Greene County

Date published: Jun 4, 2015

2015 N.Y. Slip Op. 32979 (N.Y. Sup. Ct. 2015)

Opinion

Index 14-0835

06-04-2015

BRYAN D. ORSER Plaintiff v. WHOLESALE FUEL DISTRIBUTORS-CT, LLC, Defendant and SAMMY ELJAMAL, Defendant on Counterclaims

For Plaintiff: Lisa F. Joslin, Esq. Gleason, Dunn, Walsh & Shea. For Defendant Wholesale Fuel Distributors CT, LLC and Non-Party Leon Silverman: Lois N. Rosen, Esq. Oxman Tulis Kirkpatrick Whyatt & Geirger LLP. For Defendant on Counterclaims: Sammy Eljamal, Pro se.

HON. CHARLES M. TAILLEUR Acting Justice.

Unpublished Opinion

For Plaintiff: Lisa F. Joslin, Esq. Gleason, Dunn, Walsh & Shea.

For Defendant Wholesale Fuel Distributors CT, LLC and Non-Party Leon Silverman: Lois N. Rosen, Esq. Oxman Tulis Kirkpatrick Whyatt & Geirger LLP.

For Defendant on Counterclaims: Sammy Eljamal, Pro se.

DECISION & ORDER

HON. CHARLES M. TAILLEUR Acting Justice.

The above-captioned matter arises from the alleged breach of contract of an employment contract between the parties. The defendant has moved for an Order to compel the production of the plaintiffs personal income tax returns, including all schedules, back-up information, W-2s and 1099s for the years 2010, 2011, 2012 and 2013. In furtherance of this request, the defendant alleges that the aforementioned documents contain information that is "indispensable to the defense and cannot be obtained from other sources". The defendant has also moved for an Order precluding the plaintiff from "producing any evidence at trial regarding or relating to employment-related income and additional income paid or purportedly owing during the years 2010, 2011, 2012 and 2013 other than the W-2s previously provided by the plaintiff in response to the defendant's omnibus discovery demands". The plaintiff opposes the motion.

CPLR § 3101 requires "full disclosure of all matters material and necessary in the prosecution or defense of an action, regardless of the burden of proof..." However, a trial court is "vested with broad discretion to regulate pre-trial discovery" (Duracell International. Inc. v. American Employers Insurance Company, 187A.D.2d 278, 278 [1^st Dept 1992]). .

"A disclosure request is palpably improper if it seeks information of a confidential and private nature that does not appear to be relevant to the issues in the case" (Titleserv. Inc. v Zenobio. 210 A.D.2d 314, [2^nd Dept. 1994]). Given their confidential nature, tax returns are generally not discoverable in the absence of a strong showing that the information is indispensable to the claim and cannot be obtained from other sources (see. Briand Parenteau, Inc. v Dean Witter Reynolds. 267 A.D.2d 576 [3^rd Dept. 1999]; Slate v State of New York. 267 A.D.2d 839, [3^rt Dept. 1999]). Although they are confidential (see. Briand Parenteau. Inc. v. Dean Witter Reynolds, supra, at 577), tax returns are not privileged. A request for tax returns is not palpably improper, but disclosure of them is disfavored unless they contain relevant information that is not available from other sources (see. DG & A Mat. Servs., LLC v Securities Indus. Assn. Compliance & Leoal Div., 78 A.D.3d 1316, [ 3^rd Dept. 2000]).

rt Dept. 2010]; compare Saratoga Harness Racing v Roemer, 274 A.D.2d at 889, [3

In support of its motion to compel disclosure defendant argues that the plaintiffs tax returns are necessary for prosecution of its counter claims. However, insofar as this Court by prior Decision and Order dismissed the counter claims such argument has no merit. Plaintiff has disclosed W-2 wage statements to defendant and contends that the tax returns contain confidential information of his wife's finances which are not relevant to his claims.

The Court finds that, here, defendant has not met the high burden necessary to warrant an Order requiring the production of plaintiffs tax returns. In particular, defendant failed to establish that the information contained in plaintiffs tax returns is not obtainable elsewhere. The relevant portion of plaintiffs tax returns would show plaintiffs income for the periods of the alleged employment contract. This same information should be available from defendant or its affiliated businesses since presumably defendant and its affiliated businesses maintained records that would show how much they paid plaintiff. There has been no showing that those records are unavailable. Defendant's claim that differences in the amounts reported on plaintiffs tax return and defendant's records might indicate fraud is speculative and insufficient to overcome the high burden required to obtain disclosure. For all these reasons, the Court DENIES the defendant's motion to compel. Therefore, the request for preclusion is also DENIED.

This constitutes the DECISION and ORDER of the Court the original of which is being sent to counsel for plaintiff and copies of which are being sent to defense counsel. Motion papers have been delivered to the Greene County Clerk by Chambers. The signing of this Decision and Order does not constitute entry or filing under CPLR § 2220. Plaintiffs counsel is not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry.