Kenford Co., Inc. v. Erie County

• Decision Date: 18 January 1973
• Docket Number: No. 1,1
• Citation: 340 N.Y.S.2d 300,41 A.D.2d 586
• Parties: KENFORD COMPANY, INC. and the Dome Stadium Inc., Appellants, v. The COUNTY OF ERIE et al., Respondents. Appeal
• Court: New York Supreme Court — Appellate Division

Page 300

340 N.Y.S.2d 300

41 A.D.2d 586

KENFORD COMPANY, INC. and the Dome Stadium Inc., Appellants, v. The COUNTY OF ERIE et al., Respondents.

Appeal No. 1.

Supreme Court, Appellate Division, Fourth Department.

Jan. 18, 1973.

Hodgson, Russ, Andrews, Woods & Goodyear, Buffalo, James M. Hartman, Rochester, for appellants.

Jaeckle, Fleischmann & Mugel, Timothy C. Leixner, Buffalo, for respondents.

Before DEL VECCHIO, J.P., and MARSH, WITMER and CARDAMONE, JJ.

MEMORANDUM:

To assist them in preparation of their answer in this action respondents moved to take the deposition of three nonparty witnesses. Appellants stipulated that the deposition of one of such witnesses could be taken but objected to the taking of depositions of the other two witnesses; and they appeal from the order granting the right to depose the latter. We agree with Special Term that a liberal construction should be accorded to the statutory discovery provisions (CPLR 3101, subd. (a)). The Court of Appeals has strongly endorsed this view (Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403, 406, 288 N.Y.S.2d 449, 451, 235 N.E.2d 430, 431). Although it has often been held that the deposition of a nonparty witness may not be had without a showing of special circumstances, such as 'hostility' (see McDonald v. Gore Mt. Ski Lift Corp., 30 A.D.2d 931, 293 N.Y.S.2d 553), there is a tendency by the courts to adopt a more liberal view (see Sobel v. Bess, 39 A.D.2d 778, 332 N.Y.S.2d 719; Polisar v. Linz, 39 A.D.2d 544, 331 N.Y.S.2d 742). In his practice commentary in 7B McKinney's Consolidated Laws of New York, CPLR 3101, C3101:22, Prof. David D. Siegel has written, 'before seeking the deposition of such witness, the party might approach him for a voluntary statement. If the statement is given, the party may find it sufficient for his purpose. But a statement is by no means as functional as a formal deposition, see CPLR 3117, and even the tendering of a voluntary statement by such witness may not immunize him from a charge of hostility', and further, 'Granted, that if the issue comes into court the seeking party must satisfy either paragraph (3) or (4) of CPLR 3101(a). But it must be recognized that paragraph (4), in stipulating a 'special circumstance' as adequate ground for such disclosure, leaves the matter in the court's hands. It thus becomes entirely a matter of construction', and finally, 'It is submitted that disclosure against a nonparty witness should be just as broad in the state practice as it is in the federal. The only barrier is CPLR 3101(a) (4), and that is truly a nominal one. Even hostility of such a witness should not be a necessary showing. A mere showing by the lawyer that he needs such witness's pretrial deposition in order to prepare fully for the trial should suffice as a 'special circumstance. " We favor this...