Opinion
1011191/03.
Decided June 14, 2004.
In this medical malpractice action, plaintiff contends that he suffered injury to his vision as a result of laser surgery which was negligently recommended and performed by defendant Dr. Speaker and allegedly contraindicated by plaintiff's condition known as keratoconus. Included in plaintiff's complaint is a claim for significant past and future lost earnings. In connection with that claim, the various defendants have all moved for an order pursuant to CPLR § 3124 compelling plaintiff to provide them with authorizations for the release of three types of documents: (1) IRS personal income tax returns for the years 1999 to date; (2) IRS income tax returns relating to a family-owned company known as Safe Banking Systems; and (3) accounting records maintained by Swerdloff Swerdloff, as accountants for plaintiff and Safe Banking. Plaintiff vigorously opposes the motion. To the extent stated below, the motions are granted with respect to the first two categories of documents but denied as to the third.
Background
The care and treatment at issue in this case was rendered during the period from about September 2000 through July 2001. At the time the treatment was commenced, plaintiff was studying for his MBA at the Wharton School of Business. Thereafter, during the period from July 2001 through July 2002, he was employed as an investment banker at Dresdner Kleinwort Wasserstein at an annual salary of approximately $180,000. Plaintiff claims that, as a result of the injury sustained due to defendant's alleged malpractice, he has earned virtually no income since that time.
In response to defendants' document request, plaintiff has produced copies of his W-2 statements for the years 2001 and 2002 which appear consistent with the claimed earnings from Dresdner. He insists that defendants are entitled to nothing more, as the other requested documents are privileged and/or fail to include relevant information.
However, as defendants correctly note, plaintiff testified at his deposition that, when he left his employment at the Dresdner firm in July 2002, he began to work with his father in the family business Safe Banking Systems, a business in which plaintiff also holds an ownership interest. Plaintiff claims that the business itself made no money and that he himself received no income from the business. Defendants seriously question the truthfulness of plaintiff's claims. They further argue that the release of the personal and business tax returns is necessary for defendants to pursue their defense that plaintiff did not lose earnings as a result of any injury caused by defendant but instead made a personal, life-style decision to leave the Dresdner firm and work in the family business.
Defendants are entitled to pursue that defense and other issues relating to alleged lost earnings, plaintiff's earning capacity, and mitigation of damages. To do that, they are entitled to review plaintiff's personal income tax returns with the schedules from 1999 to date, including the 2003 joint return with his wife. The household income and earnings are relevant to the lost earnings claim and defense as discussed above, and the W-2's fail to provide sufficient information about the issues raised in this case. See, Berger v. Fete Cab Corp., 57 A.D.2d 784 (1st Dep't 1977). Further, defendants are entitled to review the tax returns for Safe Banking Systems for the same period of time, as plaintiff's ownership interest was akin to self-employment. See, Myrie v. Shelley, 237 A.D.2d 337 (2nd Dep't 1997). However, defendants have failed to establish a sufficient reason to compel the production of the accountant's records.
As for the deadline for dispositive motions, the Court adheres to its May 5, 2004 order that any dispositive motions shall be filed within 60 days of the date of this decision. Although the tax returns may not be produced by that date, that information goes to the amount of damages claimed by plaintiff for lost earnings and is not needed for defendants to move for summary judgment as to liability.
Contrary to plaintiff's claim, the Court did not rule on the tax return issues in the May 5 order. By striking reference to tax returns in the proposed compliance conference order, the Court simply reserved decision on the issues pending receipt of the instant written motions.
Accordingly, it is hereby
ORDERED that defendants' motions are granted to the extent of directing plaintiff to deliver to defendants within twenty (20) days hereof IRS authorizations permitting the release of both his complete personal income tax returns, whether individual or joint, and the returns for Safe Banking Systems for the period 1999 to date; and the motions are in all other respects denied. The parties are directed to appear before this Court in Room 222 on August 25, 2003 at noon for a pre-trial conference.
This constitutes the decision and order of the Court.