Poon v McSam Hotel Group LLC

[*1] Poon v McSam Hotel Group LLC 2012 NY Slip Op 52191(U) Decided on November 28, 2012 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 28, 2012
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ
570821/12.

Calvin Poon, Plaintiff- - -

against

McSam Hotel Group LLC and Samuel Chang, Defendants-Appellants.

Defendants appeals from that portion of an order of the Civil Court of the City of New York, New York County (Margaret A. Chan, J.), dated June 7, 2011, which denied its cross motion for a protective order.

Per Curiam.

Order (Margaret A. Chan, J.), dated June 7, 2011, insofar appealed from, reversed, with $10 costs, plaintiff's motion to compel discovery is denied, and defendant's cross motion for a protective order is granted.

While we agree that information relating to the corporate defendant's gross profits during the period of plaintiff's employment is relevant to the issue of plaintiff's entitlement to compensation under the profit sharing provisions of the parties' letter agreement, plaintiff's document demand — which sought, among other vaguely described items, defendant's general ledgers, "all consolidated and consolidating financial statements," and "all agreements ... for processing credit card payments" — was palpably improper since it was overbroad and burdensome or sought irrelevant information (see CPLR 3120[2]; Perez v Board of Educ. of City of New York, 271 AD2d 251 [2000]; White Plains Coat & Apron Co. v Lehman, 87 AD2d 629 [1982]). Nor did plaintiff make the requisite "strong showing" of an overriding necessity for the information contained in defendant's tax returns and of the unavailability of the information from other sources (see Williams v New York City Hous. Auth., 22 AD3d 315, 316 [2005]). Under the circumstances, the appropriate remedy is to vacate the entire demand rather than prune it (see Board of Mgrs. of the Park Regent Condominium v Park Regent Assoc., 78 AD3d 752 [2010]), without prejudice to the plaintiff's serving a proper set of document requests.

Even though defendant's notice of appeal was limited to the denial of its cross motion for a protective order, we may review the unappealed portion of the order granting plaintiff's motion to compel discovery since it is "inextricably intertwined" with the appealed-from portion (see Matter of Burk, 298 NY 450, 455 [1949]; Castellon v Reinsberg, 82 AD3d 635, 636 [2011]; Foley v Roche, 68 AD2d 558, 564 [1979]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
I concur
Decision Date: November 28, 2012