Blasi v. Coca-Cola Bottling Co. of New York, Inc.
| Decision Date | 25 October 1983 |
| Docket Number | COCA-COLA |
| Citation | 121 Misc.2d 457,468 N.Y.S.2d 317 |
| Parties | Mary M. BLASI and Anthony Blasi, Plaintiffs, v. TheBOTTLING COMPANY OF NEW YORK, INC. and Supermarkets General Corporation, Defendants. SUPERMARKETS GENERAL CORPORATION, Third Party Plaintiff, v. CORBETT DISTRIBUTORS, INC., and William M. Corbett, Third Party Defendants. |
| Court | New York Supreme Court |
Reardon & Sclafani, P.C., Bronxville, for defendant and third party plaintiff Supermarkets General.
Irom & Wittels, P.C., New York City, for plaintiffs Mary M. Blasi and Anthony Blasi.
Rogan & Croutier, Garden City, for defendants Coca-Cola Bottling Company of N.Y.
Gervais & De Cicco, Garden City, for third party defendants Corbett Distributors, Inc.
May a corporation which has employees prepare accident reports in the ordinary course of business immunize the reports from disclosure by regularly forwarding such reports to its insurer? The question arises from the recent decision in Vernet v. Gilbert, 90 A.D.2d 846, 847, 456 N.Y.S.2d 93 (1983), wherein the Second Department drew a "sharp distinction" between reports intended for insurers, which are immune, and reports which result from the regular internal operations of the business, which are not. For the reasons that follow, the court holds that accident reports made in the ordinary course of business are not immune unless the party resisting disclosure can demonstrate that the reports are required by the insurer and are not utilized for any other internal corporate purposes. On the facts of this case, the corporate defendant has failed to sustain its burden of such proof, and the report at issue must therefore be disclosed.
Plaintiff Mary Blasi was allegedly injured by a broken Coca-Cola bottle when shopping in a Pathmark Supermarket operated by defendant third-party plaintiff Supermarkets General Corp. At a pre-trial examination of Luther Manley, a Pathmark employee who was present when the accident occurred, Mr. Manley disclosed that he had prepared an "incident investigation report" immediately after the accident.
On cross-examination, Mr. Manley acknowledged that it was store policy after an accident to "ask people what happened," and that in such cases "there is a report made out in the regular course of business." He explained that one copy of the report is routinely sent to the legal department of Supermarkets General, one copy is kept at the store, and two copies are sent to the central office. As far as the papers before the court show, Mr. Manley made no mention at the deposition of a company policy or practice with regard to forwarding the report to the company insurer.
Plaintiffs' counsel requested a copy of the report at the deposition, but counsel for Supermarkets General objected. Plaintiffs thereafter served a notice seeking disclosure of the report, prompting the instant motion for an order vacating plaintiffs' notice.
Supermarkets General contends that the report is immune from disclosure. In so doing, it has not submitted an affidavit from a corporation official or in-house counsel with personal knowledge of company policies and practices. Rather, an affirmation of outside litigation counsel asserts that the report "was not prepared for the internal operation of the defendant's retail food store," and that the corporation "does not rely on the reports to prevent future accidents, to discipline employees or to improve efficiency." Counsel asserts further that after the report is reviewed by the legal department "[t]he report in question is then forwarded directly to the defendant third-party plaintiff's liability insurance carrier."
Relying upon Vernet v. Gilbert, supra, 90 A.D.2d 846, 456 N.Y.S.2d 93, and Vogl v. Joyce Kilmer Realty, 118 Misc.2d 611, 461 N.Y.S.2d 214 (Sup.Ct. Nassau Co. 1983), counsel argues that the report "was prepared exclusively in connection with the reporting of this incident to the defendant's liability insurer" and is therefore exempt.
In opposition, plaintiffs' attorney quotes extensively from the deposition of Luther Manley and argues that the report is not immune since it was prepared in the ordinary course of business. Plaintiffs in turn rely upon Pataki v. Kiseda, 80 A.D.2d 100, 437 N.Y.S.2d 692 (2d Dept.1981), mot. for lv to app. den. 54 N.Y.2d 606, 443 N.Y.S.2d 1029, 427 N.E.2d 514 (1981), and Stein v. Trump Village, 118 Misc.2d 344, 460 N.Y.S.2d 475 (Sup.Ct. Kings Co. 1983), which they claim establish that accident reports made in the ordinary course of business are per se discoverable.
Prior to 1980, a showing that litigation was the sole motive for preparation of an accident report was sufficient to immunize it conditionally from disclosure under CPLR § 3101. 1 See Braun v. Great Atlantic & Pacific Tea Co., 67 A.D.2d 898, 413 N.Y.S.2d 181 (2d Dept.1979); Siegel, Supplementary Practice Commentaries, McKinney's CPLR, at C3101:33 (1980). The rule was one and the same for reports to attorneys and those made to insurers. See Kandel v. Tocher, 22 A.D.2d 513, 516-518, 256 N.Y.S.2d 898, 901-2 (1st Dept.1965).
In 1980, however, the legislature amended CPLR § 3101 by the addition of subd. (g), the intent of which was to liberalize the rules regarding disclosure of accident reports prepared for litigation purposes. See Siegel, op. cit.; Chaplin v. Pathmark Supermarkets, 107 Misc.2d 541, 543, 435 N.Y.S.2d 497, 498-9 (Sup.Ct. Nassau Co. 1980). The statute as amended now provides that "there shall be full disclosure of any written report of an accident prepared in the regular course of business ... unless prepared by a police or peace officer for a criminal investigation or prosecution..." CPLR § 3101(g).
In Pataki v. Kiseda, supra, the Second Department construed this provision as permitting discovery of all accident reports prepared in the regular course of business, "whether or not prepared exclusively for litigation...", 80 A.D.2d 100, 103, 437 N.Y.S.2d at 694 (emphasis in original). In Vernet v. Gilbert, supra, however, the court qualified the broad language used in Pataki, stating that there is "a sharp distinction ... between accident reports which result from the regular internal operations of any enterprise," found discoverable in Pataki, and those which are made "in connection with the report of an accident to a liability insurer," which are conditionally exempt from disclosure underKandel v. Tocher, supra, 22 A.D.2d 513, 256 N.Y.S.2d 898, and Finegold v. Lewis, 22 A.D.2d 447, 256 N.Y.S.2d 358 (2d Dept.1965). The court added "there is no indication that the Legislature, in enacting CPLR 3101 (subd. [g] ), intended to obviate the long-standing decisional rule applicable in the latter instance." 90 A.D.2d at 847, 458 N.Y.S.2d at 94.
Subsequent lower court decisions have proven that the distinction drawn in Vernet is not as "sharp" and clear as the Second Department endeavored to establish. See "2 Judges Differ on Discovery Change in CPLR," N.Y.L.J. 4/13/83 p. 1, reporting on Stein v. Trump Village, supra, 118 Misc.2d 344, 460 N.Y.S.2d 475, and Vogl v. Joyce Kilmer Realty Corp., supra, 118 Misc.2d 611, 461 N.Y.S.2d 214.
In Vogl, Mr. Justice Eli Wager gave Vernet a broad reading, stating that "in this department at least, accident reports prepared for an insurer are conditionally exempt from discovery." Based upon the finding that the report in question was given by an employee of one defendant to a co-defendant's insurer, the court determined that the report was exempt without reaching the question of whether the report was prepared in the regular course of business.
In contrast, in Stein, Mr. Justice Arthur S. Hirsch gave Vernet a much more limited reading. While reports taken "by or for carriers" of the insured's employees are exempt under Vernet and Cornell Manufacturing Co., Inc. v. Mushlin, 85 A.D.2d 592, 444 N.Y.S.2d 709 (2d Dept.1981), in his opinion "reports made by the defendant's employees of an accident ... are reports taken in the regular operation of business and will be available for discovery" (emphasis added). In Justice Hirsch's view, a narrow construction of the 'report to insurer'...
To continue reading
Request your trial