Chaplin v. Pathmark Supermarkets

• Decision Date: 22 December 1980
• Citation: 435 N.Y.S.2d 497,107 Misc.2d 541
• Parties: Mimi CHAPLIN and Arthur Chaplin, Plaintiffs, v. PATHMARK SUPERMARKETS and Supermarkets General Corporation, Defendants.
• Court: New York Supreme Court

Page 497

435 N.Y.S.2d 497

107 Misc.2d 541

Mimi CHAPLIN and Arthur Chaplin, Plaintiffs, v. PATHMARK SUPERMARKETS and Supermarkets General Corporation Defendants.

Supreme Court, Special Term, Nassau County, Part I.

Dec. 22, 1980.

Richard Weiss, New York City, for plaintiffs.

Montfort, Healy, McGuire & Salley, Mineola, for defendant.

JAMES F. NIEHOFF, Justice.

This is a motion by defendants for a protective order vacating the plaintiffs' Notice for Discovery and Inspection which demands the right to discover "Accident reports of employees pursuant to C.P.L.R. 3101(g) re the accident of August 24, 1978."

The underlying action is one by Mimi Chaplin for personal injuries allegedly sustained on August 24, 1978 at the defendant's premises as a result of the alleged negligence of the defendant. It is claimed that she was caused to fall as the result of the presence of sour cream on the floor.

Newly enacted CPLR 3101(g) under which the instant Notice was served reads as follows:

"(g) Accident reports. Except as is otherwise provided by law, in addition to any other matter which may be subject to disclosure, there shall be full disclosure of any written report of an accident prepared in the regular course of business operations or practices of any person, firm, corporation, association or other public or private entity, unless prepared by a police or peace officer for a criminal investigation or prosecution and disclosure would interfere with a criminal investigation or prosecution." (emphasis added)

The law relating to accident reports as it existed prior to the effective date of CPLR 3101(g), to wit, September 1, 1980, was stated in Carlo v. Queens Transit Corporation, 76 A.D.2d 824, 428 N.Y.S.2d 298, 299-300, in these words:

"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-motivated' 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 factfinding 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. Its use and intended use, which are issues of fact,...