Allen v. Minskoff
| Decision Date | 23 March 1972 |
| Citation | 38 N.Y.2d 506,344 N.E.2d 386,381 N.Y.S.2d 454 |
| Parties | , 344 N.E.2d 386 Sydelle ALLEN, as Administratrix of the Estate of Clement H. Allen, Deceased, Appellant, v. Jerome MINSKOFF et al., Defendants, and Spider Staging Sales Co., Inc., Respondent. (And Other Actions.) . Jan, 8, 1976. Thomas R. Newman and Benjamin H. Siff, New York City, for appellant. Saul Wilensky, Emile Z. Berman, A. Harold Frost and Sheila L. Birnbaum, New York City, for respondent. JASEN, Judge. The issue on this appeal is whether CPLR 3130 excludes the use of interrogatories in all wrongful death actions, regardless of the underlying theory of recovery pleaded. Clement Heath Allen was a professional window washer, employed by the Apex Building Corporation. On |
| Court | New York Court of Appeals Court of Appeals |
Thomas R. Newman and Benjamin H. Siff, New York City, for appellant.
Saul Wilensky, Emile Z. Berman, A. Harold Frost and Sheila L. Birnbaum, New York City, for respondent.
The issue on this appeal is whether CPLR 3130 excludes the use of interrogatories in all wrongful death actions, regardless of the underlying theory of recovery pleaded.
Clement Heath Allen was a professional window washer, employed by the Apex Building Corporation. On March 23, 1972, Allen was at work at One Astor Plaza, a large office building located at 1515 Broadway, New York City. Allen was on the roof of the building, standing astride a scaffold which he was operating. The scaffold, which had been installed only two weeks earlier, suddenly tipped over and spilled Allen out over the parapet wall of the roof. Allen plunged to his death, falli 45 stories to the roof of a set-back portion of the building.
Sydelle Allen, the administratrix of Allen's estate, brought a wrongful death action against the owners of the building, their managing agent, and the manufacturer of the scaffold, Spider Staging Sales Company, alleging that the negligence of the named defendants had brought about Allen's death. The plaintiff also asserted, as a second cause of action, that Spider Staging had breached express and implied warranties that the scaffold had been properly designed and manufactured and was fit for its intended use. The plaintiff served written interrogatories upon Spider Staging, seeking information as to the manufacturing, testing and servicing procedures employed in the production of the scaffold. Special Term set aside the interrogatories, holding that 'interrogatories are not permitted in a death action under the provisions of the CPLR.' The Appellate Division, two Justices dissenting, affirmed the order of the court below. Leave to appeal to our court was granted upon a certified question: Was the order of the Appellate Division properly made? We would hold that the service of interrogatories was properly set aside and answer the question certified in the affirmative.
In reaching a resolution of the issue presented on this appeal, we are persuaded by the legislative history of the present CPLR provisions respecting the use of interrogatories. In the initial draft of the revision of the civil practice laws, the Advisory Committee on Practice and Procedure proposed that interrogatories be permitted in all actions without limitation. The proposal was, in part, modeled after rule 33 of the Federal Rules of Civil Procedure. (First Report of the Advisory Committee on Practice and Procedure, Legis. Doc. (1957), No. 6(b), p. 148.) Pursuant to the broad scope of rule 33, interrogatories have been widely used by practitioners in the Federal courts. (See 8 Wright & Miller, Federal Practice and Procedure, § 2163, pp. 486--488; see, also, 4A Moore, Federal Practice, par. 33.02.) However, the Legislature, concerned about possible abuse of the device, reacted to objections from the bar by removing the provisions authorizing the use of interrogatories before it enacted the CPLR. (See Fifth Report of the Advisory Committee on Practice and Procedure, Legis.Doc. (1961), No. 15, p. 471.) In his message approving chapter 308 of the Laws of 1962, which embodied the CPLR, Governor Rockefeller noted that 'the absence of any provision for interrogatories as a disclosure device' was 'among the more significant omissions from the legislation in its present form' (2 McKinney's Session Laws of New York (1962), p. 3621). The Governor stated that pre-effective date amendments in this area were 'of vital importance if the advantages of modern pretrial disclosure, to litigants and to the Courts, are to be realized' (p. 3622).
The present CPLR provisions governing the use of interrogatories were adopted prior to the effective date of the CPLR in response to the Governor's suggestions. (See L.1963, ch. 422.) The Judicial Conference, in recommending passage of these amendments, agreed with the Governor that some provision should be made in the CPLR for the use of interrogatories. However, the Judicial Conference also took cognizance (McKinney's Session Laws of New York (1963), p. 1969.) Thus, the present CPLR provision, section 3130, as enacted in 1963, provides that interrogatories may be served by any party after the commencement of an action other than 'an action to recover damages for an injury to property, or a personal injury, resulting from negligence, or wrongful death'.
The curious draftmanship of CPLR 3130 has caused serious difficulties in several respects. Where an injured party assert in a personal injury action, both negligence and breach of warranty claims, the courts have been compelled to draw a careful line between the two theories and have permitted the service of interrogatories only with respect to the breach of warranty claim, notwithstanding that the two claims stem from the same accident. (See Gellis v. Searle & Co., 40 A.D.2d 676, 336 N.Y.S.2d 106; Ford Motor Co. v. Burke Co., 51 Misc.2d 420, 273 N.Y.S.2d 269; Siegel, Practice Commentaries, McKinney's Cons.Laws of N.Y., Bood 7B, CPLR 3130:3.) Similarly, where a plaintiff asserts a negligence cause of action against several defendants, he is...
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