The following papers and the attachments and exhibits thereto have been read on this motion:

Notice of Motion1

Notice of Cross Motion2

Reply Affirmation to Motion3

Reply Affirmation Cross Motion4

Defendant 1141 Realty LLC ("1141 Realty") moves for an order pursuant to CPLR 3124 compelling the Plaintiff to comply with and produce documents 1141 Realty demanded in its second notice for discovery and inspection dated April 18, 2013.

The Plaintiff cross-moves for an order "requiring 1141 Realty LLC to pay the fee of the Mandarin language interpreter retained for the deposition of 1141 Realty LLC's witness, John Mei, pursuant to CPLR § 3103 (a) and 3116 (d)".

For the reasons that follow, the motion is granted in part and denied in part and the cross motion is granted.

1141 Realty's Motion to Compel (Motion Sequence No 18)

In its second notice for discovery and inspection, 1141 Realty sought the tax returns filed on behalf of the Plaintiff as well as its owner, George Hourani, for the years 2006, 2007, 2008, and 2009. The Plaintiff objected on the grounds that the demand was "unduly vague, overly broad, burdensome and premature" and called for information which was immaterial and irrelevant. The Plaintiff also objected on the basis that tax returns are confidential and thus not discoverable in the absence of a showing that the information sought is indispensable and cannot be obtained from other sources (Exs. "A" and "C" to Motion).

Given Plaintiff's objection to the demand for tax returns, 1141 Realty served the instant [*2]motion seeking tax information which "should shed some light on the finances involved in the construction of the hotel" such as the Plaintiff's gross receipts, material expenses, subcontractor payments, and wages (Affirmation in Support of Motion at ¶ 9). According to 1141 Realty, the Plaintiff has provided a vague, if any, accounting as to: the amount of money it was paid by 1141 Realty for the project; the amount Plaintiff's employees were paid directly from 1141 Realty in cash; the amount Plaintiff paid for labor costs; the amount Plaintiff paid to subcontractors and for materials; and the amount Plaintiff incurred for "service and support".

Conversely, Plaintiff argues that 1141 Realty "already has within its possession documents from which it can determine whether plaintiff's claim adds up", including bank account statements (which show wire transfers and checking account activity) and Plaintiff's "Payment Request" (Affirmation in Opposition to Motion at ¶ 6).

It is a well settled basic rule of discovery that "[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof" (CPLR 3101[a]). Although the discovery statutes are to be construed "liberally" so that there should be disclosure of any material that is even arguably relevant, unlimited disclosure is not required, and the supervision of disclosure, as well a what is "material and necessary" is left to the sound discretion of the court. The test is one of "usefulness and reason" (Andon v 302-304 Mott St. Assoc., 94 NY2d 740, 746 [2000]). Tax returns generally are not discoverable "in the absence of a strong showing that the information is indispensable to the claim and cannot be obtained from other sources" (Levine v City Medical Assoc., P.C., 108 AD3d 746 [2d Dept 2013] [citations omitted]).

In view of the deposition testimony of George Hourani, who testified that Ibrahim Saleh (the manager 1141 Realty) paid Plaintiff's employees in cash and that these employees had punch cards, which was the only evidence of payment to these employees, and that the punch cards were stolen from the Plaintiff's office,^[FN1] the court concludes that the Plaintiff's corporate tax returns are discoverable for the yeas 2007 and 2008 but not discoverable for the years 2006 and 2009. A review of the complaint indicates that the Plaintiff performed construction on the hotel for the years 2007 and 2008 and was not involved with the construction of the hotel in the years 2006 and 2009.^[FN2] This fact was confirmed by Plaintiff's counsel in his affirmation (Affirmation in Opposition at ¶ 5). [*3]

The court also denies the motion insofar as it seeks the tax returns of Hourani, who is the sole owner of the Plaintiff but not a named party in the action. The record is devoid of any evidence that Hourani, as a nonparty, was served with a subpoena to produce any tax returns.

Plaintiff's Cross Motion (Motion Sequence No 19)

The Plaintiff cross-moves for an order requiring 1141 Realty to pay the cost of the Mandarin interpreter retained for the deposition of 1141 Realty's witness, John Mei.

In support of its cross motion, the Plaintiff argues that John Mei, the designated witness of Defendant 1141 Realty, speaks and understands sufficient English to testify and be deposed without the assistance of an interpreter; it is "patently obvious" that John Mei "did not really require the service of a Mandarin language interpreter when he testified at his deposition" held on September 17, 2013; that it was unnecessary for the Plaintiff to hire one, and that "since the interpreter was hired at the insistence of 1141 Realty LLC's attorney, 1141 Realty LLC should be required to pay the interpreter's bill" (Affirmation in Support of Cross Motion at ¶¶ 15, 20).

In opposition to the cross motion, 1141 Realty contends that "one's understanding of the English language is relative and subjective" and that John Mei requested an interpreter because he did not feel that he understood English, his second language, "to the degree necessary to adequately understand the cross-examination questions and answer sufficiently" (Affirmation in Opposition to Cross Motion at ¶ 12).

CPLR 3114 provides that if "the witness to be examined does not understand the English language the examining party must at his own expense provide a translation of all questions and answers". The Plaintiff acknowledges that it is generally the examining party who bears the expenses of a deposition, yet wishes this court, in its broad discretion to regulate discovery (CPLR 3101 [a]), to shift the burden of paying for John Mei's interpreter from the Plaintiff (as the examining party) to 1141 Realty, based on John Mei's purported sufficient knowledge of the English language.

CPLR 3114, like all disclosure provisions of CPLR article 31, must be viewed in light of the court's broad discretion under CPLR 3103(a) to regulate the "use of any disclosure device" (see U.S. Pioneer Electronics Corp. v Nikko Electric Corp. of America, 47 NY2d 914, 916 [1979] Nitz v Prudential Bache Securities, 102 AD2d 914, 915 [1984]).

Given John Mei's in-court testimony at a traverse hearing before the undersigned, without the aid of a Mandarin interpreter, the court concludes that John Mei had sufficient command of the English language obviating the need for an interpreter at his deposition held on September 17, 2013. Under the circumstances presented, the court, in its discretion, shifts the burden for paying the costs of the interpreter from the Plaintiff to the Defendant and, thus, the Plaintiff's cross motion seeking an order requiring 1141 Realty to bear the expense of John Mei's Mandarin interpreter is granted (see Ozen v Yilmaz, 181 AD2d 666 [2d Dept 1992] ["court did not [*4]improvidently exercise its discretion when it shifted the burden for paying the costs of the interpreter from the plaintiff to the defendants"; Siegel, Practice Commentaries, McKinney's CPLR C3114:1, at p 146; 3A Weinstein—Korn—Miller, NY Civ Prac, ¶ 3114.01).

Based on the foregoing, it is hereby

Ordered that the motion of Defendant 1141 Realty LLC is granted but only to the extent that Plaintiff is directed to produce the complete tax returns of the Plaintiff Born to Build LLC for the years 2007 and 2008; and it is further

Ordered that the motion of Defendant 1141 Realty LLC is, in all other respects, denied; and it is further

Ordered that the cross motion of the Plaintiff is granted.

This constitutes the decision and order of the court.

Dated: March 3, 2014

______________________________

Hon. Vito M. DeStefano