Giannelli v. Montgomery Kone, Inc.

• Decision Date: 17 November 1997
• Citation: 667 N.Y.S.2d 624,175 Misc.2d 32
• Parties: , 1997 N.Y. Slip Op. 97,678 Felicetta GIANNELLI, et al., Plaintiffs, v. MONTGOMERY KONE, INC., Formerly Known as Montgomery Elevator Company, Defendant.
• Court: New York Supreme Court

Page 624

667 N.Y.S.2d 624

175 Misc.2d 32, 1997 N.Y. Slip Op. 97,678

Felicetta GIANNELLI, et al., Plaintiffs, v. MONTGOMERY KONE, INC., Formerly Known as Montgomery Elevator

Company, Defendant.

Supreme Court, Westchester County.

Nov. 17, 1997.

Geringer & Dolan, New York City, for defendant.

Robert P. Pagano, White Plains, for plaintiffs.

DONALD N. SILVERMAN, Justice.

Motion by defendant to renew and reargue a decision issued by this court from the bench which granted plaintiffs' request for postaccident inspection, maintenance and repair records; and upon granting reargument to deny discovery of those items.

The motion to permit reargument is granted. This court's prior decision was at a general discovery conference and counsel could not be expected at that time to have relevant controlling case law at hand. Given this circumstance, the court indicated it's willingness to grant an application to reargue upon written submission.

This case involves a claim by plaintiff that she was injured while riding an escalator at Bradlee's Department Store which abruptly stopped or changed speeds. Plaintiff claims in her bill of particulars that the escalator was unsafe, dangerous and hazardous and that defendant had actual and/or constructive notice of same. As might be expected in a case of this kind, plaintiff has deferred in setting forth particular defects in the escalator until such time discovery has been accomplished. By necessity, they have sought to obtain maintenance and repair records relating to the escalator. Defendant does not object to discovery of records kept prior to the accident, but does object to records of repair and maintenance following the accident. Plaintiff does not seek to use evidence of subsequent repairs at trial, but does wish to discover records relating to subsequent maintenance and repairs to ascertain whether such records may reflect on the condition of the escalator at the time of the accident.

It was this court's opinion at the time of the initial discovery conference that while evidence of subsequent repairs are not admissible at trial, discovery of these records should not be precluded since they might shed light on the conditions complained of at the time of the accident. After review of the cases submitted by defendant, the court's opinion remains unchanged.

With good reason defendant principally relies on Klatz v. Armor Elevator Co., 93 A.D.2d 633, 462 N.Y.S.2d 677 (2nd Dept.1983). That decision deals with an elevator accident and discovery of postaccident repair records. It is stated therein (at 637, 462 N.Y.S.2d 677) that:

The cases are legion in holding that evidence of subsequent repairs is not discoverable or admissible in a negligence case (Corcoran v. Village of Peekskill, 108 N.Y. 151, 15 N.E. 309; Getty v. Town of Hamlin, 127 N.Y. 636, 27 N.E. 399, supra; Clapper v. Town of Waterford, 131 N.Y. 382, 30 N.E. 240; Cahill v. Kleinberg, 233 N.Y. 255, 135 N.E. 323; Scudero v. Campbell, 288 N.Y. 328, 43 N.E.2d 66; Croff v. Kearns, 29 A.D.2d 703, 286 N.Y.S.2d 119, affd. 22 N.Y.2d 718, 291 N.Y.S.2d...