Noah M. Rifkin, Plaintiff–Appellant, v. Howard Lubcher, Defendant–Respondent. (2026)

The Law Office of Martin S. Rapaport, P.C., New York (Karen Neuwirth of counsel), for appellant.

The Law Office of Bruce N. Lederman, New York (Bruce N. Lederman of counsel), for respondent.

Order, Supreme Court, New York County (Lori S. Sattler, J.), entered on or about July 22, 2025, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion to compel discovery, unanimously modified, on the law, the facts and in the exercise of discretion, to compel defendant to produce (1) to the extent not already produced, all draft billing worksheets or reports on which he based bills sent by him or on his behalf in 2018 to Rifkin & Lubcher clients supervised by him for accounting services rendered up to December 31, 2017;  (2) to the extent not already produced, invoices sent by defendant or on his behalf in 2018 to Rifkin & Lubcher clients for services performed in whole or in part before January 1, 2018;  (3) deposit slips evidencing the deposit of payments by Rifkin & Lubcher clients for accounting services rendered to them up to December 31, 2017 to either Rifkin & Lubcher's Citibank account or its Chase bank account;  and (4) a list of all Rifkin & Lubcher clients as of December 31, 2017;  and otherwise affirmed, without costs.

“While discovery determinations rest within the sound discretion of the trial court, [we are] vested with a corresponding power to substitute [our] own discretion for that of the trial court, even in the absence of abuse” (Andon v. 302–304 Mott St. Assoc., 94 N.Y.2d 740, 745 [2000] ).  In this action for, among other things, an accounting, we exercise our inherent discretion to grant some of plaintiff's discovery requests.

Even though defendant has already produced hundreds of pages of pre-bill worksheets, they do not go beyond 2017.  Thus, to the extent there are relevant draft billing worksheets that defendant has not already produced, for example bills sent in January 2018 for work performed in December 2017, defendant should produce them.

As for invoices, plaintiff's reply brief on appeal narrows his invoice request to those “issued in 2018 for services performed in whole or in part before January 1, 2018.”  This would not have been covered by previous orders, which directed production of documents only up to December 31, 2017.  Such invoices are relevant and should be produced.

The verified complaint alleges, “Upon information and belief, [d]efendant has failed to collect all monies owed by Rifkin & Lubcher clients to Rifkin & Lubcher for completed 2017 work.”  Defendant produced statements for Rifkin & Lubcher's account at Chase, but they are heavily redacted.  Accordingly, copies of deposit slips should be produced so that plaintiff can confirm that the unredacted portions of the bank statements reflect all relevant deposits.

However, plaintiff did not request checks and wire transfer receipts in his document request or his post-deposition letter to defendant.  He appears to have requested them for the first time in his motion to compel.  Given that one of the concerns raised by the motion court was that there was no basis “to direct discovery beyond that which was previously directed by the [c]ourt and at this stage of the proceedings,” the motion court providently exercised its discretion by denying a request that was made for the first time in a motion to compel.

Plaintiff seeks a list of all Rifkin & Lubcher clients as of December 31, 2017.  He acknowledges that defendant gave him a list of 48 Rifkin & Lubcher clients/matters, but he maintains that the partnership had more than 48 clients.  Plaintiff requested the client list both in his original document request and his post-deposition letter.  Since plaintiff alleges that defendant failed to properly bill Rifkin & Lubcher clients, plaintiff is entitled to have a list of all Rifkin & Lubcher clients to check against the invoices that defendant sent and the amounts that he collected.

Plaintiff seeks File–in–Time system documents.  However, Rifkin & Lubcher used the File–in–Time system to keep track of deadlines for tax filings, which is tangential to billing;  indeed, at his deposition, defendant testified that the File–in–Time system was never used to decide whether to prepare invoices.

Plaintiff seeks all applications made by defendant in 2018 for extended accounting malpractice insurance coverage for Rifkin & Lubcher.  However, this is not relevant to the parties' dispute.  Plaintiff alleges, and defendant admits, that plaintiff paid for malpractice insurance.

In his brief on appeal, plaintiff requests “all emails which [defendant] sent to any former client of Rifkin & Lubcher in 2018 announcing or explaining the dissolution of Rifkin & Lubcher and/or the departure of [plaintiff] from Rifkin & Lubcher and/or the continuance of the accounting practice of Rifkin & Lubcher beyond January 1, 2018.”  However, this request is not relevant to an accounting.

For the first time in his reply brief on appeal, plaintiff seeks “[c]ommunications with Firm clients concerning payment, allocation, transfer, or treatment of pre-dissolution work and receivables.”  Defendant should not be compelled to produce documents that plaintiff requested for the first time in his appellate reply brief.  The same is true of “[c]redit memoranda, write-offs, adjustments, and other records showing the disposition of amounts appearing on the December 31, 2017 Pre–Bill Worksheets and receivables records.”