LSY International, Inc. v. Kerzner

In this action for a declaration of partnership between plaintiff LSY International, Inc. and defendant K & K Merchandise Group, Inc., the dissolution of said partnership, and an accounting, plaintiffs sought to discover various financial documents, including invoices, computer printouts, journals, ledgers, and bank statements pertaining to defendant corporations. In addition, plaintiffs noticed defendants for deposition with demand to produce "[a]ll books, documents, and records”. It is well settled that discovery of fiscal matters in an action for an accounting may not be obtained unless and until plaintiff has established a right to an accounting. (Kahn v Rodman, 91 AD2d 910, 911; Wolther v Samuel, 110 AD2d 506, 507.) This principle has been specifically applied in cases of disputed partnerships (Corwin v Kaufman, 37 AD2d 838), as well as those of disputed joint ventures. (Barnett Robinson, Inc. v F. Staal, Inc., 43 AD2d 826.) In determining the extent to which items are discoverable, a court must "distinguish between examinations relating to the right to an accounting and the accounting itself, permitting the former but denying the latter until the right to an accounting has been established”. (3A Weinstein-Korn-Miller, NY Civ Prac ¶ 3101.18.) In the case at bar, plaintiffs were granted inspection of various sales invoices and financial statements despite the fact that the existence of the claimed partnership remains in dispute. This is contrary to established principles, and we accordingly modify the order enumerating discoverable items to delete such materials. 257 Similar infirmity is found in plaintiffs’ notice to take a deposition, from which we strike the demand to produce books, documents and records. (See, Melzer v Melzer, 274 App Div 1028.) Concur — Sullivan, J. P., Carro, Asch, Kassal and Wallach, JJ.