PAYNE v. ROSENBERG MINC FALKOFF AND WOLFF LLP (2024)

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered September 5, 2023, which, inter alia, denied plaintiff's motion for a protective order, and directed plaintiff to fully respond to defendant's demand for medical authorizations and collateral source information, unanimously affirmed, without costs.

The court properly denied plaintiff's motion for a protective order, finding that plaintiff failed to meet her initial burden (see Liberty Petroleum Realty, LLC v. Gulf Oil, L.P., 164 A.D.3d 401, 403, 84 N.Y.S.3d 82 [1st Dept. 2018]).  Plaintiff's legal malpractice cause of action concerns not only defendant's alleged failure to commence collection proceedings in a timely fashion against the named defendant in the underlying personal injury action, but also the failure to name an additional defendant who had an interest in the subject property.  Contrary to plaintiff's contention, the requested materials may be relevant to assess whether plaintiff was likely to prevail against the unnamed defendant, and whether the unnamed defendant had any defenses as to liability or the amount of damages alleged (see generally Stawski v. Pasternack, Popish & Reif, P.C., 54 A.D.3d 619, 620, 864 N.Y.S.2d 412 [1st Dept. 2008]).  While the named defendant defaulted and plaintiff obtained a judgment against it, plaintiff has not established that the unnamed defendant would have defaulted or had no defenses.

We have considered plaintiff's remaining arguments and find them unavailing.