Opinion
October 9, 1973
In an action to dissolve a partnership and for an accounting, defendants appeal from an order of the Supreme Court, Rockland County, entered February 5, 1973, which denied defendants' motion to vacate plaintiff's notices to discover defendants' books, etc., and to examine defendants before trial. Order modified by (1) striking from the first decretal paragraph thereof the words "in all respects" and (2) adding to said paragraph, immediately after the words that the motion is "denied", the following: "except that it is granted to the extent that (a) the defendant corporation shall be examined, in the first instance, through a person designated by it, (2) the defendants shall not be required to produce their tax returns at the examination and allow inspection to be made of said returns and (3) defendant Friedman shall not be required to produce and allow inspection of brokerage records or credit cards issued in his name only." As so modified, order affirmed, without costs. The examination and the discovery shall proceed at the place set forth in plaintiff's present notices at times to be fixed in new written notices of not less than 10 days, to be given by plaintiff. In our opinion, plaintiff failed to allege facts showing the necessity or desirability of compelling defendants to produce their tax returns ( Glenmark, Inc. v. Carity, 22 A.D.2d 680); nor was plaintiff entitled, in the first instance, to designate the person through whom the corporate defendant shall be examined ( Arett Sales Corp. v. Island Garden Center of Queens, 25 A.D.2d 546). Further, though plaintiff has established his right to an accounting, the order at bar, as modified herein, grants him sufficient scope to inquire into evidence material and necessary for that ultimate relief. Munder, Acting P.J., Martuscello, Shapiro, Christ and Brennan, JJ., concur.