Cepin v. Cepin

• Decision Date: 04 December 1978
• Parties: Carmen CEPIN, an infant, etc., Respondent, et al., Plaintiff, v. Amado CEPIN et al., Defendants, and General Motors Corp., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 673

410 N.Y.S.2d 673

66 A.D.2d 764

Carmen CEPIN, an infant, etc., Respondent, et al., Plaintiff, v. Amado CEPIN et al., Defendants, and General Motors Corp., Appellant.

Supreme Court, Appellate Division, Second Department.

Dec. 4, 1978.

Simpson, Thacher & Bartlett, New York City (Conrad K. Harper and Ronald C. Keithley, New York City, of counsel (Otis M. Smith, gen. counsel)), for appellant.

Paul S. Mirman, Brooklyn, for respondent.

Before MOLLEN, P. J., and HOPKINS, SUOZZI and RABIN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., defendant General Motors Corporation appeals (1) from an order of the Supreme Court, Queens County, dated October 26, 1977, which denied its motion to conduct an examination before trial of a nonparty witness, (2) as limited by its brief, from so much of a further order of the same court, dated November 29, 1977, as, upon reargument, adhered to the original determination and (3) a third order of the same court, dated March 8, 1978, which treated the underlying motion as one for reargument and denied it (the motion was, in fact, for reargument and renewal).

Appeal from the order dated October 26, 1977 dismissed as academic. That order was superseded by the order granting reargument.

Order dated November 29, 1977 reversed insofar as appealed from and motion to depose the nonparty witness granted in accordance herewith. The examination shall proceed at a time and place to be fixed in a written notice of not less than 10 days, to be given by appellant, or at such other time and place as the parties may agree.

Appeal from the order dated March 8, 1978 dismissed. Insofar as the order denied reargument, no appeal lies, and insofar as it denied renewal, it is academic in light of the determination on the appeal from the order dated November 29, 1977.

Appellant is awarded one bill of $50 costs and disbursements to cover all appeals.

Appellant, by motion, sought leave to conduct a pretrial examination of an expert witness engaged by the respondent to perform tests on the car alleged to have caused her injuries. Appellant characterizes respondent's expert as an important, if not the sole, source of factual information about the condition of the car after the accident, and it is appellant's stated intention to confine the examination to the witness' "factual observations" and not to probe for his opinions. The car is no longer available for inspection, as it had been "junked" before appellant received notice of the present action. Pursuant to prior court orders, respondent has turned over to appellant a copy of a report made after the expert in question inspected the car, and copies of three photographs made in connection therewith.

The fact that respondent was compelled to produce copies of her expert's report and accompanying photographs does not automatically preclude the disclosure of further relevant information in the witness' possession. The standard for such disclosure is provided by CPLR 3101 (subd. (a)). The inquiry must be whether the information sought constitutes "evidence material and necessary" within the broad interpretation accorded that phrase by the Court of Appeals in Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403, 288 N.Y.S.2d 449, 235 N.E.2d 430. Within limits, the kind of factual information sought by appellant satisfies that definition. Also, we are convinced that, insofar as respondent's expert is a nonparty witness, there has been a...