Payne v Rosenberg, Minc, Falkoff & Wolff, LLP 2024 NY Slip Op 05143 Decided on October 17, 2024 Appellate Division, First Department is not a particularly controversial decision, and we wonder why an appeal was taken. Nevertheless, a protective order concerning medical records and collateral source information was denied by the trial court and affirmed on appeal.
“The court properly denied plaintiff’s motion for a protective order, finding that plaintiff failed to meet her initial burden (see Liberty Petroleum Realty, LLC v Gulf Oil, L.P., 164 AD3d 401, 403 [1st Dept 2018]). Plaintiff’s legal malpractice cause of action concerns not only defendant’s alleged failure to commence collection proceedings in a timely fashion against the named defendant in the underlying personal injury action, but also the failure to name an additional defendant who had an interest in the subject property. Contrary to plaintiff’s contention, the requested materials may be relevant to assess whether plaintiff was likely to prevail against the unnamed defendant, and whether the unnamed defendant had any defenses as to liability or the amount of damages alleged (see generally Stawski v Pasternack, Popish & Reif, P.C., 54 AD3d 619, 620 [1st Dept 2008]). While the named defendant defaulted and plaintiff obtained a judgment against it, plaintiff has not established that the unnamed defendant would have defaulted or had no defenses.”