Nitz v. Prudential-Bache Securities, Inc., PRUDENTIAL-BACHE
| Decision Date | 07 June 1984 |
| Docket Number | PRUDENTIAL-BACHE |
| Citation | 102 A.D.2d 914,477 N.Y.S.2d 479 |
| Parties | Kenneth E. NITZ, Respondent, v.SECURITIES, INC., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Bond, Schoeneck & King, Albany (David Sheridan, Albany, of counsel), for appellant.
Lee, Le Forestier, Malone & Hanft, Troy (Michael Jude O'Connor, Troy, of counsel), for respondent.
Before KANE, J.P., and CASEY, WEISS, MIKOLL and LEVINE, JJ.
Appeal from that part of an order of the Supreme Court at Special Term, entered September 7, 1983 in Rensselaer County, which granted plaintiff's motion for a protective order striking certain items from defendant's notice to take deposition, notice for discovery and inspection, and demand for authorizations.
Plaintiff commenced the instant action to recover money damages based upon the purchase of gold and silver commodities traded on the New York Commodity Exchange on February 23 and 24, 1983. On those dates, defendant sold to plaintiff four gold contracts and four silver contracts having a total value of approximately $467,300. The complaint sets forth five causes of action alleging that defendant breached a fiduciary duty to plaintiff by failing to adhere to suitability requirements attendant commodity transactions, and by negligence and mismanagement of his account. Both parties agree that a broker is obligated to ensure that a commodity transaction is suited to an individual investor's investment experience, objectives and financial status, and that the investor is capable of evaluating and bearing the financial risk of the transactions. Essentially, it is this obligation that plaintiff contends was breached.
After joinder of issue, defendant served a notice to take deposition upon oral examination, notice for discovery and inspection, and a demand for authorization to obtain financial records, each seeking information and records pertaining to plaintiff's experience in stocks, bonds, options, commodities and any other securities. Plaintiff acknowledged defendant's rights to discover all records concerning any commodity transactions, but moved for a protective order to strike defendant's demands for information related to other securities. In his supporting papers, plaintiff stated that while he put into issue his lack of sophistication in the field of commodities, such investments were distinct from security investments and any information regarding the latter would be immaterial. In...
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