Dufresne v. Duemler

Mikoll, J. Appeals (1) from an order of the Supreme Court at Special Term (Mercure, J.), entered February 14, 1984 in Montgomery County, which granted defendants’ motion for a protective order, and (2) from an order of said court, entered May 2, 1984 in Montgomery County, which denied plaintiff’s motion to resettle the prior order. Plaintiff sued defendants for damages resulting from an alleged assault occurring on May 28, 1983. Defendant Eric H. Duemler was arrested for the assault and, subsequently was indicted for assault in the second degree, criminal mischief in the third degree and menacing. Defendants served a notice to take a deposition upon plaintiff, who cross-moved for discovery and examination of defendants. Among other things, plaintiff’s notice required the production of a number of financial and other documents. Defendants timely moved for a protective order preventing plaintiff from examining defendants as to their financial status and from examining any of the financial material demanded. The motion was granted by order entered February 14, 1984 without decision. Plaintiff then sought to resettle the order granting defendants’ motion, seeking to permit renewal of the application for disclosure if he was successful in obtaining a judgment against any of the defendants and seeking a special verdict entitling him to punitive damages. This motion was denied, without prejudice to renewal as requested, by order entered May 2, 1984. There should be an affirmance of the order entered February 14,1984. We concur with the legal holding enunciated in Rupert v Sellers (48 AD2d 265) that, in respect to compensatory damages, the financial resources of either party are irrelevant. Even where the complaint seeks punitive damages, such evidence is not discoverable before trial (see also, Vollertsen Assoc. v John T. Nothnagle, Inc., 48 AD2d 1007). No appeal lies from the order entered May 2,1984 denying the motion for resettlement (Banat v Banat, 41 AD2d 960). Order entered February 14, 1984 affirmed, with costs. [1103] Appeal from order entered May 2, 1984 dismissed, with costs to defendants. Mahoney, P. J., Kane, Casey, Mikoll and Harvey, JJ., concur.