Opinion
89 CA 14-01371
03-27-2015
Kenneth ZIOLKOWSKI, Plaintiff–Respondent, v. HAN–TEK, INC., Defendant–Appellant, and Zynergy Solutions, Inc., Defendant.
Law Offices of Destin C. Santacrose, Buffalo (Amanda Geary of Counsel), for Defendant–Appellant. Law Office of Thomas C. Pares, Buffalo (Thomas C. Pares of Counsel), for Plaintiff–Respondent.
Law Offices of Destin C. Santacrose, Buffalo (Amanda Geary of Counsel), for Defendant–Appellant.
Law Office of Thomas C. Pares, Buffalo (Thomas C. Pares of Counsel), for Plaintiff–Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, and DeJOSEPH, JJ.
Opinion
MEMORANDUM:Plaintiff commenced this action seeking damages for injuries he sustained in a work-related accident. Following the deposition of plaintiff's accountant, the attorney for defendant Han–Tek, Inc. (Han–Tek) issued a subpoena duces tecum directing plaintiff's accountant to produce documents relating to the operation of plaintiff's residential real estate business. Supreme Court erred in granting plaintiff's motion to quash the subpoena, and we therefore reverse the order and deny the motion. Plaintiff failed to meet his burden of establishing that “the information sought is utterly irrelevant to any proper inquiry” (Matter of Kapon v. Koch, 23 N.Y.3d 32, 38, 988 N.Y.S.2d 559, 11 N.E.3d 709 [internal quotation marks omitted]; see Kimmel v. State of New York, 76 A.D.3d 188, 197, 906 N.Y.S.2d 403 ). To the contrary, we agree with Han–Tek that the documents sought are relevant to plaintiff's claim for lost wages (see Picart v. New York City Tr. Auth., 226 A.D.2d 165, 165–166, 640 N.Y.S.2d 754 ), as well as Han–Tek's affirmative defense of failure to mitigate damages (see generally Singh v. Friedson, 36 A.D.3d 605, 606, 829 N.Y.S.2d 552, lv. dismissed 9 N.Y.3d 861, 840 N.Y.S.2d 760, 872 N.E.2d 873 ).
We reject plaintiff's contention that the court was bound by the law of the case to quash the subpoena, based upon a prior order (Griffith, A.J.) denying the motion of defendant Zynergy Solutions, Inc., seeking to compel disclosure of the documents listed in the subpoena. The prior motion preceded the accountant's deposition, which introduced additional evidence and raised further issues, “thereby precluding application of the law of the case doctrine” (Matter of D'Alimonte v. Kuriansky, 144 A.D.2d 737, 738, 535 N.Y.S.2d 151 ). In any event, the law of the case is not binding upon this Court's review of the order (see Martin v. City of Cohoes, 37 N.Y.2d 162, 165, 371 N.Y.S.2d 687, 332 N.E.2d 867, rearg. denied 37 N.Y.2d 817, 375 N.Y.S.2d 1029, 338 N.E.2d 332 ; Hey v. Town of Napoli, 265 A.D.2d 803, 804, 695 N.Y.S.2d 643 ).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the motion is denied.