Hennessy v. Benerofe

• Decision Date: 11 May 1978
• Citation: 404 N.Y.S.2d 756,63 A.D.2d 779
• Parties: Margaret M. HENNESSY et al., Respondents, v. Andrew R. BENEROFE et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 756

404 N.Y.S.2d 756

63 A.D.2d 779

Margaret M. HENNESSY et al., Respondents, v. Andrew R. BENEROFE et al., Appellants.

Supreme Court, Appellate Division,Third Department.

May 11, 1978.

Julius Gantman, New York City (Lois E. Freedman, New York City, of counsel), for appellants.

Simon, Trieble & Werner, Ballston Spa (Mark M. Rider, Ballston Spa, of counsel), for respondents.

Before MAHONEY, P. J., and KANE, STALEY, LARKIN and MIKOLL, JJ.

MEMORANDUM DECISION.

Appeal from an order of the Supreme Court at Special Term, entered January 26, 1977 in Schenectady County, which granted plaintiffs' motion for a protective order vacating defendants' notice to produce names and addresses of witnesses.

This is an action for personal injuries arising from alleged negligence and breach of warranties when plaintiff, Margaret M. Hennessy, tripped and fell on premises owned by defendants. The action was commenced in November, 1976, and issue was joined by service of the answer on December 13, 1976. The notice to produce names and addresses of all witnesses was annexed to the answer (CPLR 3101, subd. (a)). The notice sought the names of witnesses who might testify as to:

(a) The occurrence alleged in the complaint; or

(b) Any acts, omissions or conditions which allegedly caused the occurrence alleged in the complaint; or

(c) Any actual notice allegedly given to the defendant(s) answering herein of any condition which allegedly caused the occurrence alleged in the complaint; or

(d) The nature and duration of any alleged condition which allegedly caused the occurrence alleged in the complaint.

It has been held that a party is entitled to the name "of an active participant in the incident" (O'Dea v. City of Albany, 27 A.D.2d 11, 275 N.Y.S.2d 687) and also the names of eyewitnesses to the accident 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 the defendants.

The request for names of potential witnesses as to condition and notice by the defendants was properly denied. The party seeking disclosure of the identity of such "notice" witnesses is not seeking facts relating to the occurrence but, instead, is trying to determine the evidence that plaintiffs will introduce to prove their action by acquiring the names of witnesses to a condition that defendants' opponent has discovered through investigation. The argument that the identity of a "notice" witness is the work product of the attorney or material prepared for litigation is valid and the identity of such "notice" witnesses should be protected. Particularly is this true when the place involved in the accident was under the control and care of the defendants.

The thrust of the rule requiring the disclosure of witnesses to an event is to make the existence of eyewitnesses equally known to both sides * * *. This does not extend to a party having to absolutely determine and disclose his total trial strategy upon the submission of a bill of particulars by determining and disclosing each and every witness whom he may call on a multiplicity of issues which do not involve eyewitnesses to any occurrence or event. Such a...