McDONOUGH v. PINSLEY (1997)

Order, Supreme Court, New York County (Eileen Bransten, J.), entered July 17, 1996, which, insofar as appealed from, denied defendant's motion to compel production of a document used by plaintiff to refresh his recollection at his deposition, and certain of plaintiff's income tax returns, unanimously modified, on the law and the facts, to compel production of the document used at the deposition, and otherwise affirmed, without costs.

 Any privilege protecting the subject document from disclosure was waived by plaintiff when he used it to refresh his recollection (Grieco v. Cunningham, 128 A.D.2d 502, 512 N.Y.S.2d 432;  CPLR 3116 [c] ).  The record does not support plaintiff's assertion that defendant has already inspected the relevant portion of the document, and, in any event, defendant is entitled to inspect the entire document.   Production of the tax returns was properly denied, plaintiff's financial wherewithal being irrelevant to his claim that, as a result of defendant's legal malpractice in failing to take certain steps to protect plaintiff's parental rights, plaintiff was forced to undertake substantial litigation in New Hampshire to vacate a decree of adoption of his son by his former lover's husband, and had to wait three years to gain visitation rights (see, Haenel v. November & November, 172 A.D.2d 182, 567 N.Y.S.2d 713).

MEMORANDUM DECISION.