OTTO v. TRIANGLE AVIATION SERVICES INC (1999)

In an action, inter alia, to recover damages for breach of contract, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Winslow, J.), entered May 26, 1998, as granted that branch of the plaintiff's motion which was to compel the defendant to comply with item 4 of Schedule A of the plaintiff's first request for the production of documents, seeking the production of the personal income tax returns of Ralph Fine, Lonnie Fine, and Perry Fine for the years 1987 to 1995.

ORDERED that the order is reversed insofar as appealed from, with costs, and that branch of the plaintiff's motion which was to compel the defendant to comply with item 4 of Schedule A of the plaintiff's first request for the production of documents is denied.

 The failure of a party to challenge the propriety of a notice for discovery and inspection pursuant to CPLR 3120 within the time prescribed by CPLR 3122 forecloses inquiry into the propriety of the information sought except with regard to material that is privileged pursuant to CPLR 3101 or requests that are palpably improper (see, Holness v. Chrysler Corp., 220 A.D.2d 721, 633 N.Y.S.2d 986;  Titleserv, Inc. v. Zenobio, 210 A.D.2d 314, 315, 619 N.Y.S.2d 769;  Zimmer v. Cathedral School of St. Mary & St. Paul, 204 A.D.2d 538, 539-540, 611 N.Y.S.2d 911;  Muller v. Sorensen, 138 A.D.2d 683, 526 N.Y.S.2d 496).

 The defendant correctly contends that the plaintiff's request for the production of the personal income tax returns of its corporate officers is palpably improper since it seeks information of a confidential and private nature that is not relevant to the issues in this case (see, Zimmer v. Cathedral School of St. Mary & St. Paul, supra;  Muller v. Sorensen, supra).

MEMORANDUM BY THE COURT.