Hoffman v. Ro-San Manor

• Decision Date: 18 March 1980
• Docket Number: RO-SAN
• Citation: 73 A.D.2d 207,425 N.Y.S.2d 619
• Parties: Eva HOFFMAN, Plaintiff-Respondent, v.MANOR, Defendant-Appellant, Eleanor Klein et al., Defendants, and Jeannie Lebwhol, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 619

425 N.Y.S.2d 619

73 A.D.2d 207

Eva HOFFMAN, Plaintiff-Respondent, v. RO-SAN MANOR, Defendant-Appellant, Eleanor Klein et al., Defendants, and Jeannie Lebwhol, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

March 18, 1980.

Nathan Cyperstein, New York City, of counsel (Alvin P. Blumenthal, New York City, with him on the brief, Gantman, Cyperstein & Peckman, New York City, attys.), for defendants-appellants.

Janice A. Goodman, New York City, for plaintiff-respondent.

Before BIRNS, J. P., and FEIN, SULLIVAN, LUPIANO and LYNCH, JJ.

SULLIVAN, Justice.

The sole issue presented is whether a party in a negligence action is entitled to disclosure of the names and addresses of witnesses other than eyewitnesses to the accident. In keeping with the trend towards greater liberality of disclosure, we hold that the names and addresses of potential witnesses who can testify to notice and the condition of which plaintiff complains are also discoverable.

In her complaint plaintiff, a tenant in an apartment house, charges defendants, the owners and managing agent, with failing to secure the premises and to provide for her safety in that they permitted unauthorized access to the building, as a consequence of which an unidentified third party raped, robbed and sodomized her, and held her captive at knifepoint for two hours. Plaintiff alleges that she sustained serious physical injury and continues to suffer emotional distress.

Defendant served a notice to produce names and addresses of witnesses, calling for identification of witnesses 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 defendants 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.

Plaintiff responded by stating that she was unaware of the existence of any witnesses to the crimes or of any person who saw the doorman allow the unidentified third person into the premises, but that if her investigation revealed such a person defendants would be notified. Plaintiff refused to comply with the requests made in paragraphs (b), (c) and (d) on the ground that defendants were entitled to the names and addresses of witnesses to the actual incident, but not to the names and addresses of all witnesses who might ultimately testify at trial.

Subsequently, defendants moved for an order compelling plaintiff to make a proper response to the notice to produce. Special Term denied the motion and this appeal followed.

Prior to the enactment of the Civil Practice Law and Rules requests for disclosure of the names of possible witnesses, whether by discovery or examination before trial, had generally been denied. (See Kosiur v. Standard-North Buffalo Foundries, Inc., 255 App.Div. 930, 8 N.Y.S.2d 688; Martyn v. Braun, 270 App.Div. 768, 59 N.Y.S.2d 588; Gavin v. New York Contracting Company, 122 App.Div. 643, 107 N.Y.S. 272.) An exception was recognized if a witness was also an active participant, in which event his name and address were discoverable. (Pistana v. Pangburn, 2 A.D.2d 643 151 N.Y.S.2d 742; Milberg v. Lehrich, 2 A.D.2d 861, 156 N.Y.S.2d 74.) The rationale for this exception was that the witness was "so closely related to the accident that his testimony (became) essential in establishing the happening of the accident." (O'Dea v. City of Albany, 27 A.D.2d 11, 12-13, 275 N.Y.S.2d 687, 689.)

The enactment in 1962 of the Civil Practice Law and Rules foreshadowed an even greater access to discovery of the names and addresses of witnesses:

There shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action, regardless of the burden of proof . . . . (CPLR 3101(a).)

Such disclosure is subject to the protections afforded within CPLR 3101 to privileged matter (subd. (b)), attorney work product (subd. (c)), and material prepared for litigation (subd. (d)). The trend since has been, however, toward a more expansive application. (See 3A Weinstein-Korn-Miller, New York Civil Practice, § 3101.11.) For instance, the Court of Appeals, when faced with the more general question of the materiality of certain interrogatories, stated:

The words, "material and necessary", are in our view, to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity. The test is one of usefulness and reason. CPLR 3101 (subd. (a)) should be construed, as the leading text on practice puts it, to permit discovery of testimony "which is sufficiently related to the issues in litigation to make the effort to obtain it in preparation for trial reasonable." (citation omitted) (Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403, 406-7, 288 N.Y.S.2d 449, 452, 235 N.E.2d 430, 432.)

In determining whether names of witnesses to an event were discoverable, this Court in Rios v. Donovan, 21 A.D.2d 409, 250 N.Y.S.2d 818 noted the trend toward greater disclosure and held that "the proper procedure would be to make inquiry as to the persons present at the time of the accident during the course of taking the oral depositions of the party or a witness pursuant to 3107 Civil Practice Law and Rules . . . ." (Id. at 414-15, 250 N.Y.S.2d at 823.) Eventually, this view was adopted by the Second Department, which reviewed its holding in Varner v. Winfield, 33 A.D.2d 807, 307 N.Y.S.2d 3, that the names of witnesses constituted material prepared for litigation, and decided that "the names of eyewitnesses to the occurrence, even if obtained by investigation made after the occurrence, are discoverable if they are material and necessary to the prosecution or defense of the action." (Zellman v. Metropolitan Transp. Auth., 40 A.D.2d 248, 251, 339 N.Y.S.2d 255, 258.)

Inevitably, the courts were confronted with the discoverability of the identity of witnesses other than eyewitnesses to the accident. The response has not been uniform. When presented with the question, the Second Department held that the names and addresses of persons who would be called to testify to the inoperability of a traffic light were discoverable; finding that in theory no difference existed "between discoverability of the identity of an eyewitness to an accident and the identity of a witness who would testify to the existence of a defective condition which was allegedly the competent producing cause of an accident." (Zayas v. Morales, 45 A.D.2d 610, 612, 360 N.Y.S.2d 279, 281.) On the other hand, the Third Department subsequently rejected such reasoning and noted "(t)he 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." (Hennessy v. Benerofe, 63 A.D.2d 779, 780, 404 N.Y.S.2d 756, 757.) To date the issue has not arisen in this Court.

Plaintiff challenges neither the materiality nor the...