Bengiat v. State

• Citation: 256 N.Y.S.2d 876,45 Misc.2d 323
• Decision Date: 11 February 1965
• Docket Number: No. 40318,40318
• Parties: Michael BENGIAT, Claimant, v. The STATE of New York, Defendant. Claim
• Court: New York Court of Claims

Page 876

256 N.Y.S.2d 876

45 Misc.2d 323

Michael BENGIAT, Claimant, v. The STATE of New York, Defendant.

Claim No. 40318.

Court of Claims of New York.

Feb. 11, 1965.

Louis J. Lefkowitz, Atty. Gen., by Arthur Richardson, Asst. Atty. Gen., of counsel, for the State of New York, in support of the motion and in opposition to claimant's cross-motion.

Shreck & Berke, New York City, for claimant, by Nathan L. Berke, New York City, of counsel, in opposition to the motion and in support of the cross-motion.

CAROLINE K. SIMON, Judge.

On August 30, 1961 claimant duly filed a notice of intention to file a claim predicated upon personal injuries suffered by him on June 3, 1961 while a patron of defendant's Bear Mountain Roller Skating Rink, alleging negligence and breach of warranty in regard to defendant's issuance, adjustment and maintenance of skates rented to him by defendant on that day. A claim based thereon was thereafter duly filed on April 7, 1962.

On August 12, 1964 defendant served a notice on claimant's counsel to produce claimant for examination before trial on August 21, 1964. By letter dated August 12, 1964, also addressed to claimant's counsel, claimant was requested to submit to a physical examination and to execute an authorization to review the hospital records of the institutions at which he was treated for the injuries giving rise to the within claim. Numerous adjournments, necessitated by the illness of the children of claimant's counsel and because of the actual engagement on trial of claimant's counsel, were had. To date no examination before trial or physical examination of the claimant has been held nor has claimant executed the hospital authorization requested by defendant.

By order the show cause dated January 28, 1965 defendant moved pursuant to Section 3126 CPLR to strike claimant's pleadings herein and to dismiss the claim, or, in the alternative, to obtain an order directing claimant to appear for examination before trial and for physical examination on a date to be fixed by the Court, asserting that the claim had been assigned for trial and that defendant would be prejudiced unless these examinations are had. By Notice of Cross-Motion dated January 29, 1965 claimant cross-moved to obtain the production of a written statement obtained by the rink management from claimant immediately subsequent to the accident, the production of claimant's first aid records and the roller skates rented by claimant, and an examination before trial of the rink attendant who issued and adjusted claimant's skates. Claimant further sought the production of the aforesaid items on the same day as that fixed by the Court for the examination of claimant heretofore noted, but prior to claimant's examination.

On the argument of the within motion and cross-motion, defendant did not stress that portion of its show cause order which sought relief by way of striking claimant's pleadings and the dismissal of the claim, but urged that claimant be directed to appear for examination on a day certain. Defendant also indicated its willingness to make available for examination those persons and items listed in claimant's cross-motion on the day to be fixed by the Court for claimant's examination, but objected to the production to claimant's statement prior to claimant's examination on the ground that it would provide claimant with the opportunity to conform his testimony to that given immediately after the accident. Claimant did not oppose the alternative relief sought, but argued that claimant should be permitted to examine his own statement prior to being examined by the defendant in the interest of justice.

Defendant conceded that the broad disclosure provisions of Article 31 of the Civil Practice Law and Rules are available to claimants in this Court, Di Santo v. State of New York, 22 A.D.2d 289, 254 N.Y.S.2d 965, affirming 41 Misc.2d 601, 245 N.Y.S.2d 234, and that, by virtue of Section 3101(e) thereof, claimant may generally obtain a copy of his own...