OLSEN v. JAMES MILLER MARINE SERVICE INC (2004)

Plaintiff commenced this action for damages based on injuries he allegedly sustained in 1998 while working on a barge docked in the East River as part of a Con Edison project to repair its pier there.   He seeks, among other things, to recover for loss of income under the federal Longshore and Harbor Workers Compensation Act (LHWCA).   Defendant Reicon and Reinauer move to compel the production of plaintiff's tax returns.   Defendants D'Onofrio and Con Ed join in the motion.   Plaintiff opposes, insisting that defendants already have plaintiff's W-2 statements and answers to interrogatories attesting to after-tax income.

The motion is granted.   Plaintiff correctly notes that the First Department does not encourage the disclosure of tax returns when alternate sources of information are available.   See, e.g. Ciancio v. Woodlawn Cemetery, 210 A.D.2d 9, 618 N.Y.S.2d 816 (1st Dep't 1994).   However, defendants point to various federal cases which emphasize the importance of calculating lost earnings under LHWCA based on after-tax earnings.   See, e.g., Jones & Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 103 S.Ct. 2541, 76 L.Ed.2d 768 (1983);  Norfolk and Western Railway v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689 (1980);  Fanetti v. Hellenic Lines Ltd., 678 F.2d 424 (2d Cir.1982).   Plaintiff makes no attempt to dispute the proposition of law or distinguish the cases.   Rather, he argues that the evidence produced is a sufficient alternative to tax returns.   Considering the detailed calculations required to be made, the Court finds that the disclosure of the tax returns is appropriate on balance.

Accordingly, it is hereby

ORDERED that defendants' motion is granted and plaintiff is directed to produce within 20 days of notice of entry of this decision copies of his Federal Tax Returns for 2001, 2002 and 2003 and to sign an appropriate authorization to the Internal Revenue Service if defendants provide one.   The case shall thereafter proceed to Mediation and Part 40 for trial, if necessary, as a Note of Issue has been filed and dispositive motions have already been determined by this Court.

ALICE SCHLESINGER, J.