Opinion
2014-05-9
Jeffrey T. HARRIS and Sheryl Harris, Plaintiffs–Respondents, v. Ashley E. SCHMIDT and Kathryn J. Gill, Defendants–Appellants.
Burgio, Kita, Curvin & Banker, Buffalo (Hilary Banker of Counsel), for Defendants–Appellants. Law Offices Of Richard S. Binko, Cheektowaga (Richard S. Binko of Counsel), for Plaintiffs–Respondents.
Burgio, Kita, Curvin & Banker, Buffalo (Hilary Banker of Counsel), for Defendants–Appellants. Law Offices Of Richard S. Binko, Cheektowaga (Richard S. Binko of Counsel), for Plaintiffs–Respondents.
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS AND VALENTINO, JJ.
MEMORANDUM:
Plaintiffs commenced this action seeking damages for injuries sustained by Jeffrey T. Harris (plaintiff) when the vehicle he was driving collided with defendants' vehicle. After plaintiffs failed to respond to defendants' notice for discovery and inspection, defendants moved, inter alia, for discovery of the documents that are the subject of the outstanding discovery demands.
Supreme Court properly exercised its discretion in directing plaintiffs to submit for in camera review income tax and other records relating to the post-accident employment of plaintiff, who is self-employed, but erred in declining to direct plaintiffs to submit for in camera review such records relating to his pre-accident employment. We therefore modify the order accordingly. Those records, whether pre- or post-accident, may contain information that is “material and necessary” to the defense of the action (CPLR 3101[a]; see Carter v. Fantauzzo, 256 A.D.2d 1189, 1190, 684 N.Y.S.2d 384;Myrie v. Shelley, 237 A.D.2d 337, 338–339, 655 N.Y.S.2d 66), and the court may minimize any intrusion into plaintiffs' privacy by “redact [ing] any portions of the records ... that are irrelevant or unduly prejudicial” ( Carter, 256 A.D.2d at 1190, 684 N.Y.S.2d 384). The court properly exercised its discretion in directing plaintiffs to submit for in camera review records of a prior workers' compensation claim unrelated to the subject accident, thus permitting the court to determine whether those records are material and relevant to the medical conditions placed in controversy by plaintiffs ( see Tirado v. Koritz, 77 A.D.3d 1368, 1370, 908 N.Y.S.2d 793;Myrie, 237 A.D.2d at 339, 655 N.Y.S.2d 66).
We agree with defendants that this Court's decision in Harris v. Processed Wood, 89 A.D.2d 220, 455 N.Y.S.2d 411 does not render plaintiff's application for no-fault benefits immune from disclosure. Unlike the statement at issue in that case, the information in plaintiff's application was not communicated to the insurer in anticipation of litigation and, moreover, such information may be “material and necessary” to the defense of the action (CPLR 3101[a]; see Donald v. Ahern, 96 A.D.3d 1608, 1610, 949 N.Y.S.2d 306). We therefore further modify the order by vacating the fifth ordering paragraph, and we direct plaintiffs to produce the application for no-fault benefits filed by plaintiff Jeffrey T. Harris under Claim No. 01678398692.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating the fourth and fifth ordering paragraphs and granting the motion to the extent that plaintiffs are directed to submit to Supreme Court the documentssought under paragraphs 1, 2, 4 and 5 of the notice for discovery and inspection, and to provide to defendants a copy of the application for no-fault benefits filed by plaintiff Jeffrey T. Harris under Claim No. 01678398692, and as modified the order is affirmed without costs and the matter is remitted to Supreme Court, Erie County, for further proceedings.