Braun v. Great Atlantic & Pac. Tea Co., Inc.

• Decision Date: 05 February 1979
• Citation: Braun v. Great Atlantic & Pac. Tea Co., Inc., 413 N.Y.S.2d 181, 67 A.D.2d 898 (N.Y. App. Div. 1979)
• Parties: Deborah Rose BRAUN, Respondent, v. The GREAT ATLANTIC & PACIFIC TEA CO., INC., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 181

413 N.Y.S.2d 181

67 A.D.2d 898

Deborah Rose BRAUN, Respondent, v.The GREAT ATLANTIC & PACIFIC TEA CO., INC., Appellant.

Supreme Court, Appellate Division, Second Department.

Feb. 5, 1979.

Montfort, Healy, McGuire & Salley, Mineola (E. Richard Rimmels, Jr., Mineola, of counsel), for appellant.

Harry Ruderman, New York City, for respondent.

Before GULOTTA, J. P., and SHAPIRO, COHALAN and MARGETT, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, defendant appeals (1) from an order of the Supreme Court, Queens County, dated June 17, 1977, which granted plaintiff's motion for discovery of an accident report and (2) as limited by its brief, from so much of a further order of the same court, dated November 10, 1977, as, upon reargument, adhered to the original determination.

Appeal from the order dated June 17, 1977 dismissed as academic.That order was superseded by the order made upon reargument.

Order dated November 10, 1977 reversed insofar as appealed from, and, upon reargument, motion for discovery of the accident report denied.

Defendant is awarded one bill of $50 costs and disbursements to cover both appeals.

On the present record it appears that the accident report sought was prepared by defendant's employee solely in preparation for litigation.The report form was drafted by the attorneys representing defendant exclusively on accident cases and related occurrences, and the completed report form was immediately forwarded to them.Moreover, these reports were never used to improve efficiency or for any other business purpose, according to the affidavit of defendant's Region Comptroller.

Accordingly, unlike the document sought in Green v. Carey Transp., 38 A.D.2d 711, 329 N.Y.S.2d 331, which apparently was prepared for the benefit of the employer in his business, this accident report is exempt from disclosure under CPLR 3101(subd. (d), par. 2)(seeReese v. Long Is. R. R. Co., 24 A.D.2d 581, 262 N.Y.S.2d 194;Kandel v. Tocher, 22 A.D.2d 513, 256 N.Y.S.2d 898).

GULOTTA, J. P., and COHALAN and MARGETT, JJ., concur.

SHAPIRO, J., concurs as to the dismissal of the appeal from the order dated June 17, 1977, but otherwise dissents and votes to affirm the order dated November 10, 1977 insofar as it has been appealed from, with the following memorandum:

The use of the form in question was clearly an artifice designed by counsel for the purpose of precluding injured plaintiffs from receiving the...