        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

481
CA 13-01840
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND VALENTINO, JJ.


JEFFREY T. HARRIS AND SHERYL HARRIS,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

ASHLEY E. SCHMIDT AND KATHRYN J. GILL,
DEFENDANTS-APPELLANTS.


BURGIO, KITA, CURVIN & BANKER, BUFFALO (HILARY BANKER OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

LAW OFFICES OF RICHARD S. BINKO, CHEEKTOWAGA (RICHARD S. BINKO OF
COUNSEL), FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Henry J.
Nowak, Jr., J.), entered June 4, 2013. The order, among other things,
denied in part defendants’ motion for, inter alia, discovery of
certain documents.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating the fourth and fifth
ordering paragraphs and granting the motion to the extent that
plaintiffs are directed to submit to Supreme Court the documents
sought under paragraphs 1, 2, 4 and 5 of the notice for discovery and
inspection, and to provide to defendants a copy of the application for
no-fault benefits filed by plaintiff Jeffrey T. Harris under Claim No.
01678398692, and as modified the order is affirmed without costs and
the matter is remitted to Supreme Court, Erie County, for further
proceedings in accordance with the following Memorandum: Plaintiffs
commenced this action seeking damages for injuries sustained by
Jeffrey T. Harris (plaintiff) when the vehicle he was driving collided
with defendants’ vehicle. After plaintiffs failed to respond to
defendants’ notice for discovery and inspection, defendants moved,
inter alia, for discovery of the documents that are the subject of the
outstanding discovery demands.

     Supreme Court properly exercised its discretion in directing
plaintiffs to submit for in camera review income tax and other records
relating to the post-accident employment of plaintiff, who is self-
employed, but erred in declining to direct plaintiffs to submit for in
camera review such records relating to his pre-accident employment.
We therefore modify the order accordingly. Those records, whether
pre- or post-accident, may contain information that is “material and
necessary” to the defense of the action (CPLR 3101 [a]; see Carter v
                                 -2-                           481
                                                         CA 13-01840

Fantauzzo, 256 AD2d 1189, 1190; Myrie v Shelley, 237 AD2d 337, 338-
339), and the court may minimize any intrusion into plaintiffs’
privacy by “redact[ing] any portions of the records . . . that are
irrelevant or unduly prejudicial” (Carter, 256 AD2d at 1190). The
court properly exercised its discretion in directing plaintiffs to
submit for in camera review records of a prior workers’ compensation
claim unrelated to the subject accident, thus permitting the court to
determine whether those records are material and relevant to the
medical conditions placed in controversy by plaintiffs (see Tirado v
Koritz, 77 AD3d 1368, 1370; Myrie, 237 AD2d at 339).

     We agree with defendants that this Court’s decision in Harris v
Processed Wood (89 AD2d 220) does not render plaintiff’s application
for no-fault benefits immune from disclosure. Unlike the statement at
issue in that case, the information in plaintiff’s application was not
communicated to the insurer in anticipation of litigation and,
moreover, such information may be “material and necessary” to the
defense of the action (CPLR 3101 [a]; see Donald v Ahern, 96 AD3d
1608, 1610). We therefore further modify the order by vacating the
fifth ordering paragraph, and we direct plaintiffs to produce the
application for no-fault benefits filed by plaintiff Jeffrey T. Harris
under Claim No. 01678398692.




Entered:   May 9, 2014                          Frances E. Cafarell
                                                Clerk of the Court
