The following papers were submitted for the Court’s determination on the 25th day of April 2019:Notice of Motion 1Affirmation in Support and Exhibits Attached 2Affirmation in Opposition and Exhibits Attached 3Reply Affirmation 4DECISION AND ORDER Before the Court is a motion to quash a certain subpoena and accompanying Notice to Take Deposition of a Non Party Witness, both dated January 24, 2019, and directed to one Matthew Reichert.Plaintiff alleges to have been injured when caused to trip and fall at defendant’s place of business. She seeks recovery for, as relevant here, lost wages and an inability to return to her work providing cleaning services. Defendant avers that plaintiff, at her deposition, stated that she earned between $26,000. to $46,000. per year, but her tax returns reflected an annual income of $15,600. In 2017. Defendant now seeks to depose Mr. Reichert, an accountant who prepared plaintiff’s returns, as “relevant and necessary” and “warranting clarification” of the discrepancies.In the first instance, there is no showing as to how the accountant’s testimony will resolve any discrepancies. Any discrepancies will be resolved by the finder of fact, through, presumably, rigorous cross-examination of plaintiff at trial. Cross-examination is “beyond any doubt the greatest legal engine ever invented for the discovery of truth” (People v. Chin, 67 NY 2d 22, 27, quoting 5 Wigmore on Evidence, §1367). “Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested” (Davis v. Alaska, 415 US 308, 316).Special circumstances must be shown in order to warrant discovery from a non-party (CPLR §3101 (a) (4)), such as, as is relevant here, proof that “the information sought to be discovered cannot be obtained from other sources” (Dioguardi v. St. John’s Riverside Hospital, 144 AD 2d 333, 334 (2d Dept.)). All of the documents, books, and records of plaintiff utilized by Mr. Reichert to prepare the tax returns have been provided to defendant.1 Defendant cites Brooklyn Floor Maintenance Company v. Providence Washington Insurance. Co., 296 AD 2d 520 (2d Dept.) in support of its claim that special circumstances exist to justify a deposition. However, Brooklyn Floor is easily distinguishable on its facts. In that case, the financial condition of the corporate plaintiff was relevant on the issue of its motive, if any, to set fire to property for which plaintiff sought fire insurance proceeds. At his deposition, the corporate plaintiff’s principal was unable to answer basic inquiries into its bookkeeping practices or about certain entries in its records, and identified his accountant as the person who could provide those answers. The Court permitted a non-party deposition of that accountant.Here, by contrast, plaintiff answered the questions before her at her deposition, and provided her accountant with her books and records relative to her income which have been disclosed to defendant. There is a distinction between an inability to provide answers, and contradictions between one’s testimony and other records, which are credibility issues for resolution at trial. This is so especially where, as here, there is no showing, beyond mere hope or speculation, that Mr. Reichert’s testimony could resolve those discrepancies.Motion to quash the subpoena and Notice to Take Deposition served on Matthew Reichert, dated January 24, 2019, is granted.It is so ordered.Dated: April , 2018
