Gates v. Baker
| Decision Date | 13 July 1973 |
| Citation | 74 Misc.2d 891,346 N.Y.S.2d 128 |
| Parties | Dale A. GATES and Kathleen G. Gates, Plaintiffs, v. Robert BAKER, Sr. and Bruce Baker, Defendants. |
| Court | New York Supreme Court |
This is a motion by the defendants pursuant to CPLR 3101 to compel the plaintiffs to disclose the names and addresses of any witnesses, known to the plaintiffs, who were at the scene of this accident at the time of or within five minutes thereafter. The plaintiff Kathleen Gates refused, on advice of counsel, to answer questions seeking this information in an examination before trial.
The affidavit of plaintiffs' counsel in opposition to the motion states in part:
'5. That the identities of any possible witnesses were not known to the plaintiff at the scene, but was material which she and her husband, also a plaintiff herein, were able to obtain with regard to the accident.
6. That the material obtained by the plaintiffs was in preparation for litigation and not required to be disclosed at the Examination Before Trial.'
Thus the question is squarely raised as to whether a party may in a negligence action secure from his opponent the names of witnesses to the accident obtained during post accident investigation or whether such information is within the immunity of an attorney's work product or material prepared for litigation under subdivisions (c) and (d) of CPLR 3101.
The treatment given this question is thoroughly reviewed by Justice Margett in Hartley v. Ring, 58 Misc.2d 618, 269 N.Y.S.2d 394 in 1969 wherein it was held that discoverability of the names of witnesses depended not on whether such witnesses were 'participants' in the event, as was earlier held determinative in Pistana v. Pangburn, 2 A.D.2d 643, 151 N.Y.S.2d 742, and O'Dea v. City of Albany, 27 A.D.2d 11, 275 N.Y.S.2d 687, but on whether the witnesses were observed by a party to be present at the accident scene or whose identity was learned thereat. A party must reveal the names of those witnesses in the latter category but not those whose identity was learned through investigation after the event. This ruling was adhered to in Barner v. Winfield, 33 A.D.2d 807, 307 N.Y.S.2d 3, and Workman v. Boylan Buick, Inc., 36 A.D.2d 978, 321 N.Y.S.2d 983.
In January 1973 the Second Department in Zellman v. Metropolitan Transportation Authority, 40 A.D.2d 248, 339 N.Y.S.2d 255, revised its adherence to the so-called 'Hartley-Varner' rule and decided that the names of eyewitnesses to an event to be discoverable if material and necessary whether their identities were learned at the accident scene or thereafter through investigative effort. The court held that the nemes of eyewitnesses developed in the course of investigation are not protected '. . . as things created by a party in preparation for litigation.' (p. 251, 339 N.Y.S.2d p. 258). Disclosure of the actual statements of these witnesses was still not to be required since they are considered as material prepared for litigation.
In Wolken v. E. W. Howell Co., 41 A.D.2d 545, 339 N.Y.S.2d 272, the Second Department reiterated the Zellman rule, characterizing it at page 546, 339 N.Y.S.2d at page 273 '. . . as an exception to the general rule of nonavailability of work product to an adversary . . .'. An earlier case to the same effect is Menyweather v. Niagara Frontier Transit System, Inc., 53 Misc.2d 373, 279 N.Y.S.2d 207, affd., 25 A.D.2d 821, 269 N.Y.S.2d 1019, which denied immunity from disclosure of names of witnesses discovered by a party's attorney through a post accident investigation. See also Clamp v. Boldt, 62 Misc.2d 886, 310 N.Y.S.2d 91.
The principal reason for not requiring disclosure of witnesses' names is that it would tend to make the opposing party the beneficiary of the...
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Hennessy v. Benerofe
...who are not strictly active participants (Zellman v. Metropolitan Transp. Auth., 40 A.D.2d 248, 339 N.Y.S.2d 255; Gates v. Baker, 74 Misc.2d 891, 346 N.Y.S.2d 128; Neal v. Spence, 53 Misc.2d 518, 278 N.Y.S.2d 919). Therefore, the names of witnesses to the occurrence should be supplied to th......
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O'Connell's Estate, Matter of
...of such witnesses, for they are truly material prepared for litigation." Id. at 610, 360 N.Y.S.2d at 281. See also Gates v. Baker, 74 Misc.2d 891, 346 N.Y.S.2d 128 (1973). As this liberalizing trend has developed, the Surrogates' courts have been called upon to interpret and regulate the us......