Ziolkowski v. Han-Tek, Inc. , 6 N.Y.S.3d 819 ( 2015 )

Appeal from an order of the Supreme Court, Erie County (Timothy J. Drury, J.), entered October 28, 2013. The order granted plaintiffs motion to quash a subpoena.

It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs and the motion is denied.

Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained in a work-related accident. Following the deposition of plaintiffs accountant, the attorney for defendant Han-Tek, Inc. (Han-Tek) issued a subpoena duces tecum directing plaintiffs accountant to produce documents relating to the operation of plaintiffs residential real estate business. Supreme Court erred in granting plaintiffs motion to quash the subpoena, and we therefore reverse the order and deny the motion. Plaintiff failed to meet his burden of establishing that “the information sought is utterly irrelevant to any proper inquiry” (Matter of Kapon v Koch, 23 NY3d 32, 38 [2014] [internal quotation marks omitted]; see Kimmel v State of New York, 76 AD3d 188, 197 [2010]). To the contrary, we agree with Han-Tek that the documents sought are relevant to plaintiffs claim for lost wages (see Picart v New York City Tr. Auth., 226 AD2d 165, 165-166 [1996]), as well as HanTek’s affirmative defense of failure to mitigate damages (see generally Singh v Friedson, 36 AD3d 605, 606 [2007], lv dismissed 9 NY3d 861 [2007]).

We reject plaintiffs contention that the court was bound by the law of the case to quash the subpoena, based upon a prior order (Griffith, A.J.) denying the motion of defendant Zynergy Solutions, Inc., seeking to compel disclosure of the documents listed in the subpoena. The prior motion preceded the accountant’s deposition, which introduced additional evidence and raised further issues, “thereby precluding application of the law of the case doctrine” (Matter of D'Alimonte v Kuriansky, 144 AD2d 737, 738 [1988]). In any event, the law of the case is not binding upon this Court’s review of the order (see Martin v City of Cohoes, 37 NY2d 162, 165 [1975], rearg denied 37 NY2d 817 [1975]; Hey v Town of Napoli, 265 AD2d 803, 804 [1999]).

Present — Centra, J.P., Peradotto, Lindley, Sconiers and DeJoseph, JJ.