Coleman v. Myers

• Decision Date: 22 January 1968
• Citation: 29 A.D.2d 727,286 N.Y.S.2d 366
• Parties: George T. COLEMAN et al., Respondents, v. George MYERS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 366

286 N.Y.S.2d 366

29 A.D.2d 727

George T. COLEMAN et al., Respondents, v. George MYERS, Appellant.

Supreme Court, Appellate Division, Third Department.

Jan. 22, 1968.

Arthur. J. Harvey, Albany, for respondents.

Towner, Erway & Lyons, Condon A. Lyons, Albany, for appellant.

Before HERLIHY, J.P., and REYNOLDS, AULISI, STALEY and GABRIELLI, JJ.

AULISI, Justice.

Appeal from an order of the County Court of Albany County entered April 18, 1967, in Albany County which denied a motion for the discovery and inspection of plaintiffs' pertinent income tax returns.

Plaintiffs were self-employed trash collectors, claiming loss of income as a result of injuries allegedly caused by defendant's truck colliding with plaintiffs' truck. At the pre-trial examination plaintiffs testified they earned from their business about $150 each per week, giving the names and addresses of some of their customers, and that the average charge for trash collection was $1 per barrel. Plaintiffs testified from memory, apparently having kept no books or records concerning the business. Plaintiffs were in this business for about a year before the accident.

CPLR 3101 requires disclosure of all material and necessary evidence. When a self-employed plaintiff sues in a negligence action for personal injury, evidence of his income from business of personal efforts may be material and relevant (Kronold v. City of New York, 186 N.Y. 40, 78 N.E. 572; Gombert v. New York Central & Hudson R.R. Co., 195 N.Y. 273, 88 N.E. 382; Spreen v. Erie R.R. Co., 219 N.Y. 533, 114 N.E. 1049; Bissonette v. National Biscuit Co., 2 Cir., 100 F.2d 1003).

None of the cases relied upon by plaintiffs are for income tax returns in negligence actions in which the plaintiff was self-employed. Glenmark Inc. v. Carity, 22 A.D.2d 680, 253 N.Y.S.2d 478, app. dsmd. 15 N.Y.2d 956, 259 N.Y.S.2d 845, 207 N.E.2d 518, was an action for fraud in which inspection of books, records and other documents was allowed but not income tax returns without a stronger showing of necessity or disirability; Fugazy v. Time, Inc. (24 A.D.2d 443, 260 N.Y.S.2d 853) was a libel action in which defendant failed to show the need to inspect plaintiff's returns, besides, plaintiff had supplied a statement of gross income, with sources of income; and November v. Hollander, Sup., 83 N.Y.S.2d 869, was an action on an oral contract, compensation in part being based on defendant's profits and defendant had books of account of his business, but discovery was denied primarily because plaintiff did not demonstrate convincingly enough that he had a cause of action.

In the instant case, however, plaintiffs kept no books or records to confirm their allegations of loss of earnings. It would be wholly unrealistic and an unreasonable burden on defendant to require him to gather evidence of income by contacting all of plaintiffs' customers. Without the income tax returns, the only evidence would be plaintiffs' testimony. Many cases support the requirement of discovery of income tax returns when the injured plaintiff is self-employed Elmer v. Byrd, 32 Misc.2d 408, 220 N.Y.S.2d 985, affd. 16 A.D.2d 744, 227 N.Y.S.2d 248; Rosenblum v. Rosenblum, 21 A.D.2d 682, 249 N.Y.S.2d 918; Sachs v. Stripling, 36 Misc.2d 813, 236 N.Y.S.2d 524; Holihan v. Regina Corp., 54 Misc.2d 264, 282 N.Y.S.2d 404; Altman v. City of New York, 46 Misc.2d 133). In DiBiasso v. Gonsenhauser, 36...