Opinion
June 22, 1993
Appeal from the Supreme Court, New York County (Carol E. Huff, J.).
In each of the causes of action asserted by the plaintiff, he demanded, inter alia, an accounting of all monies earned by the corporate defendant since his association with the corporation was terminated, and of all profits derived from the computer program in which he maintained he was entitled to share in the profits. In Item 18 of his Notice to Produce (Discovery and Inspection), the plaintiff sought to have the defendants produce for his inspection copies of all executed contracts with the corporate defendant's customers, including maintenance contracts. The Supreme Court denied the defendants' motion for a protective order striking, inter alia, Item 18 of the plaintiff's Notice to Produce.
We reverse. Discovery of fiscal matters may not be obtained for causes of action seeking an accounting until the right to an accounting is established (see, LSY Intl. v. Kerzner, 140 A.D.2d 256; Kahn v. Rodman, 91 A.D.2d 910; Wolther v. Samuel, 110 A.D.2d 506). Receipt of the contracts in question would permit the plaintiff to calculate the corporate defendant's gross profits on each computer program sold. They therefore constituted fiscal matters to which the plaintiff was not entitled prior to establishing his right to an accounting (see, LSY Intl. v Kerzner, supra; Morone v. Morone, 85 A.D.2d 768). Accordingly, it was error to deny the defendants' motion for a protective order.
Concur — Carro, J.P., Rosenberger, Ellerin, Wallach and Rubin, JJ.