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GAMA AVIATION INC., et al., Plaintiffs–Appellants, v. SANDTON CAPITAL PARTNERS, LP, et al., Defendants–Respondents,

Sandton Patners LLC, Defendants. KB Acquisition, LLC, Counterclaim Plaintiff–Respondent, v. Gama Aviation Inc., et al., Counterclaim Defendants–Appellants, Gama Holdings Limited, Additional Counterclaim Defendant–Appellant.

Decided: January 14, 2014

SWEENY, J.P., RENWICK, ANDRIAS, FREEDMAN, FEINMAN, JJ. Boies, Schiller & Flexner LLP, Armonk (Richard E. Weill of counsel), for appellants. Peter K. Rydel, New York, for respondents.

Order, Supreme Court, New York County (Eileen Bransten, J.), entered July 19, 2013, granting defendants' motion to compel plaintiffs-counterclaim defendants and additional counterclaim defendant Gama Holdings Limited (collectively Gama) to produce certain financial documents for 2011 and 2012, and all tax returns filed since January 1, 2010, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, the motion denied, and defendants directed to return the documents previously produced pursuant to this Court's interim order dated July 23, 2013 (2013 N.Y. Slip Op 84656[U] [1st Dept 2013] ), and no paper or electronic copies may remain in counsel's possession.

We substitute our discretion for that of the motion court (see Andon v. 302–304 Mott St. Assocs., 94 N.Y.2d 740, 745 [2000] ), since there is no indication in the record that the documents sought are relevant to Gama's claim for lost profits. Gama articulated a narrow claim based on the grounding of a specific aircraft in October 2010, after the aircraft was booked for between 250 and 300 flight hours over the course of the following 12 months, which was expected to produce revenue of over $1 million. Although pre–2011 financial information and tax returns were produced, defendants have not demonstrated that any of the information provided has any bearing on the specific claim for lost profits.

With respect to the requested tax returns, defendants failed to show that there is an indispensable need for them, or that the information sought is unavailable through other sources (see Nanbar Realty Corp. v. Pater Realty Co., 242 A.D.2d 208, 209–10 [1st Dept 1997] ). Gama's prior disclosure of pre–2011 data did not operate to waive all objections or privacy interests in the post2010 data, nor did this earlier production confer relevance on the post–2010 returns (see Pyron v. Banque Francaise du Commerce Exterieur, 256 A.D.2d 204, 205 [1st Dept 1998] ).

We have considered the parties' additional arguments and find them unavailing.