Carlo v. Queens Transit Corp.

• Decision Date: 02 June 1980
• Citation: Carlo v. Queens Transit Corp., 428 N.Y.S.2d 298, 76 A.D.2d 824 (N.Y. App. Div. 1980)
• Parties: Maria CARLO et al., Appellants, v. QUEENS TRANSIT CORPORATION et al., Respondents (and a third-party action).
• Court: New York Supreme Court — Appellate Division

Page 298

428 N.Y.S.2d 298

76 A.D.2d 824

Maria CARLO et al., Appellants, v.QUEENS TRANSIT CORPORATION et al., Respondents (and a third-party action).

Supreme Court, Appellate Division, Second Department.

June 2, 1980.

Pliskin, Rubano & Baum, Flushing (Frank S. Polestino and Joseph A. Baum, Flushing, of counsel), for appellants.

Bower & Gardner, New York City(Howard R. Cohen, David L. Taback and Steven J. Ahmuty, New York City, of counsel), for respondents.

Before HOPKINS, J. P., and TITONE, MANGANO and RABIN, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from a judgment of the Supreme Court, Queens County, entered December 18, 1978 in favor of the defendants, after a jury trial.

Judgment reversed, on the law, and a new trial granted, with costs to abide the event.

The issue is whether nisi prius erred in denying plaintiffs' application to compel defendantQueens Transit Corporation to produce an accident report filed by its employee, defendant Carson, concerning the incident upon which this action was based.The report was marked with a legend indicating that it had been prepared solely for litigation purposes, that it was confidential and only for the use of the transit company's attorney.Plaintiffs argued before the trial court that since the defendant transit company used "in-house counsel", Carson's accident report was not prepared solely for an attorney in anticipation of litigation, but for his employer in the regular course of business.Plaintiffs therefore attacked the legend as a mere device to prevent its disclosure as privileged material.

CPLR 3101(subd. (d), par. 2) protects from discovery "any writing or anything created by or for a party or his agent in preparation for litigation."It is settled law, however, that if a report or other writing is prepared for an employer in the regular course of business, it is subject to disclosure (Chemical Bank v. National Union Fire Ins. Co. of Pittsburgh, Pa., 70 A.D.2d 837, 418 N.Y.S.2d 23;Kaiser v. South Nassau Communities Hosp., 58 A.D.2d 643, 396 N.Y.S.2d 54;Green v. Carey Transp., 38 A.D.2d 711, 329 N.Y.S.2d 331).If such documents are intended for purposes beyond that of litigation, e. g., as efficiency reports, or disciplinary or personnel records, they are "(m) ulti-motived" and do not warrant immunity (Seigel, N.Y. Practice, § 348, p. 430;see, also, Mold Maintenance Serv. v. General Acc. Fire & Life Assur. Corp., 56 A.D.2d 134, 392 N.Y.S.2d 104;Millen Inds. v. American Mut. Liab. Ins. Co., 37 A.D.2d 817, 324 N.Y.S.2d 930).Attempts to discover a report submitted to an employer will therefore require a fact- finding hearing to determine whether it exists for multiple purposes, since in certain instances such reports have been found to be prepared for litigation only (see, Braun v. Great Atlantic and Pacific Tea Co., 67 A.D.2d 898, 413 N.Y.S.2d 181;Soifer v. Mount Sinai Hosp., 63 A.D.2d 713, 405 N.Y.S.2d 116;Reese 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).Thus, the simple fact that a report is submitted to an employer is not dispositive of its nature as privileged material. ...