Kane v. Her-Pet Refrigeration, Inc., HER-PET

• Decision Date: 27 July 1992
• Docket Number: HER-PET
• Citation: 181 A.D.2d 257,587 N.Y.S.2d 339
• Parties: Gerald KANE, also known as Jerry Kane, et al., Appellants, v.REFRIGERATION, INC., et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 339

587 N.Y.S.2d 339

181 A.D.2d 257

Gerald KANE, also known as Jerry Kane, et al., Appellants, v. HER-PET REFRIGERATION, INC., et al., Respondents.

Supreme Court, Appellate Division Second Department.

July 27, 1992.

Eisenberg, Margolis & Friedman, New York City (Mitchell R. Friedman, of counsel), for appellants.

Curtis, Zaklukiewicz, Vasile, Devine & McElhenny, Merrick (Roy W. Vasile, of counsel), for respondent Her-Pet Refrigeration, Inc.

Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Garden City (Patricia W. Congdon, of counsel), for respondent Michael McCarvill.

Before THOMPSON, J.P., and MILLER, RITTER and COPERTINO, JJ.

RITTER, Justice.

This appeal presents the question of whether surveillance evidence--photographs, motion pictures, and videotapes--obtained in preparation for the defense of a personal injury claim, should be discoverable prior to trial by the claimant. The Appellate Divisions of the First, Third, and Fourth Departments have ruled on the question, but are in conflict. This court addresses the issue for the first time on this appeal. For purposes of our analysis, we define surveillance evidence as evidence that depicts the plaintiff engaged in activity inconsistent with his claimed disabilities. The majority view in New York, as well as in other jurisdictions where the issue has been decided, is that a plaintiff is entitled to pretrial examination of surveillance evidence which the defense intends to offer or use at trial. We agree with the majority view and direct the requested disclosure in this case.

The record on appeal is sparse. We do know that the lawsuit arises from an accident involving a single automobile. According to the complaint, the accident occurred at approximately 1:20 A.M. on January 26, 1989. The injured plaintiff, Gerald Kane, was a passenger in the vehicle which allegedly left the roadway and struck a utility pole causing him to sustain serious personal injuries. Mr. Kane is seeking compensatory damages in the sum of $5,000,000, claiming loss of earnings, impairment of future earning capacity, loss of enjoyment of life, and other damages. His wife, Carmel Kane, is seeking damages for loss of consortium in the sum of $500,000.

On or about January 12, 1990, the attorneys for the plaintiffs served a notice for discovery and inspection of various items including "any reports of surveillance or photographs taken of our clients". They subsequently moved to compel compliance with their discovery demand. In support of the motion, counsel argued that the plaintiffs have a right to examine the surveillance materials and to test them for authenticity. ¹

The defendants opposed the motion to compel on the ground that any surveillance evidence which may exist would constitute material prepared in anticipation of litigation, rendering it immune from disclosure absent a showing by the plaintiffs that they have a substantial need for the materials in the preparation of the case, and are unable without undue hardship to obtain the substantial equivalent of the materials by other means (see, CPLR 3101[d][2]. The defense counsel argued that the plaintiffs have no basis to claim undue hardship as a result of being denied access to any surveillance evidence that may exist because they can produce their own photographic or videotaped evidence. They argued further that the plaintiffs will not be able to claim surprise at trial because they have personal knowledge of what the injured plaintiff has been capable of doing since the date of the accident.

The Supreme Court denied the motion, implicitly rejecting the plaintiffs' argument that disclosure is necessary so that they can examine and perhaps test the photographic or videotaped evidence for authenticity prior to trial. The court held, in effect, that the plaintiffs had failed to establish the requisite need and hardship under CPLR 3101(d)(2) that would warrant compelling the defendants to disclose the material prepared in contemplation of litigation. We disagree.

It is clear that surveillance films are relevant to the issue of damages in a personal injury action. The obvious reason for securing this type of film is to be able to destroy a plaintiff's credibility and to portray his or her claimed disabilities as being overstated and fraudulent. Indeed, films taken without the knowledge of the subject can have a dramatic impact in the courtroom, perhaps establishing the most critical facts in the entire case (see, Boyarsky v. G.A. Zimmerman Corp., 240 App.Div. 361, 364-365, 270 N.Y.S. 134). The mere possibility that such evidence may exist "will often cause the most blatant liar to consider carefully the testimony he plans to give under oath" (Snead v. American Export-Isbrandtsen Lines, Inc., 59 F.R.D. 148, 150 [E.D.Pa.].

There is no question that surveillance material is evidence that may be used in the prosecution or defense of an action (CPLR 3101[a]. ² Nonetheless, we must consider whether this material should remain immune from disclosure because it was obtained by defense counsel in contemplation of litigation. The defendants contend that the conditional immunity must be respected in this type of case because otherwise, the injured plaintiff will be able to tailor his testimony at trial to effectively neutralize the evidence, thereby preventing the exposure of a fraudulent or exaggerated claim. We recognize that the element of surprise can have a prophylactic effect in preventing possible perjury, but that is not a sufficient reason to declare this type of relevant information immune from disclosure (see, Martin v. Long Island R.R., Co., 63 F.R.D. 53 [E.D.N.Y.]. The competing interests presented by this appeal can be balanced and accommodated.

The Court of Appeals has held that the disclosure article (CPLR art. 31) must 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" (Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 235 N.E.2d 430).

The purpose of liberal disclosure is "to ascertain truth and to accelerate the disposition of suits" (Rios v. Donovan, 21 A.D.2d 409, 411, 250 N.Y.S.2d 818). The examples that follow illustrate the application of these rules to advance the purpose of the disclosure article.

In Totoritus v. Stefan, 6 A.D.2d 123, 175 N.Y.S.2d 802, a case in which the plaintiff sought a copy of his own statement made to the defendant's investigator, the defense resisted disclosure using the same arguments relied upon by the defense in this case. The case predates enactment of CPLR 3101(e), which now permits a party to obtain his or her statement as a matter of right, and thus, the court was asked to weigh some of the same policy considerations before us in this case. The court ordered disclosure with the following observation, pertinent here as well "While it is recognized that such discovery affords a party an opportunity to accommodate his testimony to the prior statement (assuming that the statement, as recorded, is an accurate one), it also provides an opportunity to the party to correct any inaccuracies or distortions that may have occurred in the recording of the statement. No generalization is safe which is based on any premise which assumes the integrity, or lack of it, either in the giving of the prior statement or in the recording thereof" (Totoritus v. Stefan, supra at 124, 175 N.Y.S.2d 802).

The rule permitting a party to obtain a copy of his or her own statement appears to have been adopted for the first time in Wilhelm v. Abel, 1 A.D.2d 55, 147 N.Y.S.2d 475. In Wilhelm, the Third Department overruled prior decisions that had precluded disclosure of a party's own statement absent special circumstances or a showing that fraud or deception had been practiced. The court observed that a change was needed to more quickly and fairly dispose of the volume of personal injury actions that were clogging the court's calendars, and noted, "[t]o accomplish these ends it has increasingly been the practice to eliminate any elements of surprise whenever practicable" (Wilhelm v. Abel, supra at 56, 147 N.Y.S.2d 475).

This court applied the same policy considerations in Zellman v. Metropolitan Transp. Auth., 40 A.D.2d 248, 339 N.Y.S.2d 255, holding that the names of eyewitnesses in a personal injury action are discoverable even though, once again, the information was obtained as a result of counsel's investigation:

"We have reviewed our prior holdings and have now concluded 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. Prior holdings to the effect that the names of eyewitnesses may be regarded as things created by a party in preparation for litigation resulted from a strained construction of the statute. They represent an understandable effort to avoid allowing one party to benefit from the preparatory efforts of his opponent. Nonetheless, such constructions do violence to the stated policy of CPLR 3101 that there shall be full disclosure of all material and necessary evidence and serve to perpetuate the 'sporting theory of justice'. Justice is better served, the trial of cases expedited and the possibilities of perjury concomitantly reduced if there is disclosure of the names of eyewitnesses to be called. This does not, of course, apply to the statements of such witnesses, for they are truly material prepared for litigation" (Zellman v. Metropolitan Transp. Auth., supra at 251, 339 N.Y.S.2d 255).

This court's reasoning in Zellman was extended to the identification of notice witnesses in Zayas v. Morales, 45 A.D.2d 610, 360 N.Y.S.2d 279; see also, Hoffman v. Ro-San Manor, 73 A.D.2d 207, 425 N.Y.S.2d...