Rubin v EFP Rotenberg, LLP 2020 NY Slip Op 32714(U) August 19, 2020
Supreme Court, New York County Docket Number: 651825/2015
Judge: Barbara Jaffe discusses what disciplinary or governmental investigation materials may be relevant to a claim of professional malpractice.
“Pursuant to CPLR 3 IOI(a), “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action … ” What is “material and necessary” is generally left to the court’s sound discretion and may include “any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity.” (Andon ex rel. Andon v 302-304 Mott St. Assocs., 94 NY2d 740, 746 , quoting Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 406 ). A party may seek an order compelling compliance or a response to any request, notice, interrogatory, demand, question, or
order under CPLR article 31. (CPLR 3124).
Plaintiffs claim of accountant malpractice requires a showing that “there was a departure from the accepted standards of practice and that the departure was a proximate cause of the injury.” (KBL, LLP v Cmty. Counseling & Mediation Servs., 123 AD3d 488, 488 [1st Dept
2014]). Thus, any documents, communications, findings, and remedial actions made in the course of administrative or disciplinary proceedings concerning defendant’s work for the companies, such as that conducted by the SEC and sought in interrogatory 11, are material and necessary to plaintiffs claim. That the information sought may be inadmissible is of no moment, as the interrogatories are “reasonably likely to yield relevant evidence.” (Forman v Henkin, 30 NY3d 656, 666 ). “