THOMPSON v. KUHANECK MP MP (2025)

MEMORANDUM AND ORDER

It is hereby ORDERED that said appeal by defendant Derek Kuhaneck is unanimously dismissed and the order is affirmed without costs.

Memorandum: In this personal injury action arising from a slip-and-fall accident suffered by Robert Thompson (plaintiff) at a work site, defendants MP Construction and Mark Pettit, doing business as MP Construction (collectively, MP Construction defendants), and defendant Derek Kuhaneck, each appeal from an order insofar as it denied in part the MP Construction defendants’ motion to preclude evidence or, in the alternative, to compel plaintiffs to produce certain discovery. As an initial matter, we conclude that Kuhaneck is not aggrieved by the order from which he purports to appeal because the order neither granted relief against him nor denied any affirmative relief on his own behalf (see CPLR 5511; Fabrizi v. 1095 Ave. of the Ams., L.L.C., 22 N.Y.3d 658, 664 n 4, 985 N.Y.S.2d 416, 8 N.E.3d 791 [2014]; Krause v. Industry Matrix, LLC, 227 A.D.3d 1560, 1561, 211 N.Y.S.3d 687 [4th Dept. 2024]; Kavanaugh v. Kavanaugh, 200 A.D.3d 1568, 1571, 161 N.Y.S.3d 558 [4th Dept. 2021]). Contrary to Kuhaneck's suggestion, although he supported the MP Construction defendants’ motion, he did not formally join that motion in compliance with CPLR 2215 (see Kavanaugh, 200 A.D.3d at 1571-1572, 161 N.Y.S.3d 558; Morales v. 1415, LLC, 171 A.D.3d 913, 916, 98 N.Y.S.3d 335 [2d Dept. 2019]). Consequently, Kuhaneck's appeal must be dismissed (see Fabrizi, 22 N.Y.3d at 664, 985 N.Y.S.2d 416, 8 N.E.3d 791; Kavanaugh, 200 A.D.3d at 1571-1572, 161 N.Y.S.3d 558).

With respect to the merits of the MP Construction defendants’ appeal, we conclude that Supreme Court did not abuse its discretion in denying in part the motion (see Spencer v. Willard J. Price Assoc., LLC, 155 A.D.3d 592, 592, 63 N.Y.S.3d 854 [1st Dept. 2017]; Manzella v. Provident Life & Cas. Co., 273 A.D.2d 923, 924, 709 N.Y.S.2d 772 [4th Dept. 2000]; cf. Boyea v. Benz, 96 A.D.3d 1558, 1559-1560, 946 N.Y.S.2d 757 [4th Dept. 2012]; see generally Reading v. Fabiano [appeal No. 2], 126 A.D.3d 1523, 1525, 6 N.Y.S.3d 360 [4th Dept. 2015]). Insofar as the motion relates to the disclosure of plaintiff's Social Security Disability records, the court “properly conducted an in camera review to redact irrelevant information ․, and properly limited disclosure to the ‘conditions affirmatively placed in controversy’ ” (Reading, 126 A.D.3d at 1525, 6 N.Y.S.3d 360; see Mayer v. Cusyck, 284 A.D.2d 937, 938, 725 N.Y.S.2d 782 [4th Dept. 2001]). Further, the court properly denied the motion insofar as it relates to the disclosure of plaintiff's tax returns inasmuch as the MP Construction defendants “failed to make the requisite showing that [the] tax returns were indispensable to [the] litigation and that [the] relevant information possibly contained therein was unavailable from other sources” given that plaintiff's past earnings were reflected in his employer's wage verification from his Workers’ Compensation file (Lauer's Furniture Stores, Inc. v. Pittsford Place Assoc., 190 A.D.2d 1054, 1055, 593 N.Y.S.2d 674 [4th Dept. 1993]; cf. Has K'Paw Mu v. Lyon, 158 A.D.3d 1084, 1085-1086, 71 N.Y.S.3d 259 [4th Dept. 2018]).