Opinion
October 1, 1973
In an action to recover damages for wrongful death and conscious pain and suffering, defendants Nathaniel Cannon, Wheels, Inc. and Bienenfeld Industries, Inc. appeal from an order of the Supreme Court, Kings County, dated March 13, 1973, which granted plaintiff's motion for a protective order striking said defendants' demand for inspection of various documents, except that said defendants, in their brief on this appeal, have waived inspection of the income tax returns of plaintiff's decedent. Order modified by striking from the decretal paragraph the words "in all respects" and by adding thereto, immediately after the words that the motion "is granted", the following: "only as to item 1 of said notice and denied as to all the other items." As so modified, order affirmed, with $20 costs and disbursements to appellants. The inspection shall proceed at the place set forth in said notice at a time to be fixed in a new written notice of not less than 10 days, to be given by appellants. Appellants are entitled to discovery of all "evidence material and necessary" to the case under CPLR 3101. Business records and receipts, as they pertain to the issue of future earnings in this action, are "material and necessary" (cf. Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403). Hopkins, Acting P.J., Latham, Shapiro and Gulotta, JJ., concur; Benjamin, J., dissents and votes to affirm.