Klatz v. Armor Elevator Co., Inc.

• Decision Date: 23 May 1983
• Citation: 93 A.D.2d 633,462 N.Y.S.2d 677
• Parties: Alexander KLATZ et al., Respondents, v. ARMOR ELEVATOR CO., INC., Appellant, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 677

462 N.Y.S.2d 677

93 A.D.2d 633

Alexander KLATZ et al., Respondents, v. ARMOR ELEVATOR CO., INC., Appellant, et al., Defendant.

Supreme Court, Appellate Division,

Second Department.

May 23, 1983.

Montfort, Healy, McGuire & Salley, Mineola, (E. Richard Rimmels, Jr. and Richard S. Kaye, Mineola, of counsel), for appellant.

Kanter, Haber & Vogel, Plainview, (Myron D. Vogel, Plainview, of counsel), for respondents.

Before DAMIANI, J.P., and MANGANO, THOMPSON and O'CONNOR, JJ.

MANGANO, Justice.

The male plaintiff was injured on February 3, 1980 when a public elevator in which he was riding fell two stories. Plaintiffs instituted a negligence action against defendant Armor Elevator Co., Inc. (hereinafter Armor), which had the duty to service, inspect and repair the elevator pursuant to a contract with the owner of the building, Wes Building Corp. (hereinafter Wes). The summons served on Armor named Wes as a defendant, however, it appears that Wes was never served. The primary issue to be resolved on this appeal is whether, and to what extent, plaintiffs may obtain discovery of defendant Armor's records concerning any accidents involving this particular elevator which occurred subsequent to the accident in question.

In their complaint against Armor, plaintiffs alleged that it was negligent in the following respects:

"causing, suffering and permitting the elevator to become and remain in a defective, broken, hazardous and otherwise dangerous condition; in failing properly to inspect and test and maintain said elevator; in failing to repair said elevator; in making improper and defective repairs to said elevator; in failing to give any warning or notice of the condition of the elevator; in failing to exercise that degree of care and caution required under the circumstances; in failing to shut down the elevator when [it] knew or should have known same was in a defective and dangerous condition; and in violating the rules, regulations and statutes relevant to safety regarding passenger elevators * * *

"Defendant * * * ARMOR ELEVATOR CO., INC. maintained and serviced the elevators in said building [and] knew, or, in the exercise of reasonable care, should have known that the elevator was in a defective and dangerous condition in that the safety mechanisms regarding movement of said elevator were defective, and should have warned plaintiff thereof".

The answer of Armor contained several affirmative defenses, viz, contributory negligence, assumption of risk, and lack of personal jurisdiction, and also a cross claim for contribution against defendant Wes.

Thereafter, an examination before trial of defendant Armor was conducted. The witness produced by Armor was Jerry Castaldo a service supervisor for Armor at the time of the accident.

During the course of the examination, counsel for Armor advised that the service contract between it and Wes would be produced. The witness Castaldo stated that he personally inspected the elevator on February 5, 1980, two days after the accident, and made a report of his findings after that inspection. The request of plaintiffs' counsel for production of that report as well as reports regarding "any subsequent incident[s] involving this elevator" was refused by Armor's counsel.

Plaintiffs' counsel then indicated that the examination had to be adjourned because the witness did not have any service records or reports in his possession. Defense counsel took exception and indicated that the witness would not come to another examination.

Thereafter, plaintiffs moved for an order compelling a further examination before trial and also disclosure of (1) the service contract between Armor and Wes and (2) service and complaint records in connection with the elevator for a period of one year prior to, and subsequent to the date of the accident. The affidavit in support of the motion reiterated the prior history of the case and requested disclosure of the documents listed in the notice of motion, plus Castaldo's report made after his inspection of the elevator on February 5, 1980.

In an affirmation submitted in opposition to the motion, Armor's counsel agreed to produce the service contract between Wes and Armor. However, with respect to the request for service records, Armor's counsel argued that the demand for discovery of such records covering the one year period prior to the accident was much too broad, and that discovery of records going back six months prior to the accident was sufficient.

With respect to service records and complaint records subsequent to the accident, counsel argued (1) that the request for the same by plaintiffs was a blunderbuss fishing expedition, and (2) that defendant never dreamed that plaintiffs' notice to take the examination before trial of Armor, which merely required the person to be examined to bring with him all "records, books, papers, documents, correspondence and copies thereof and other writings and papers kept by them [sic ] or in their [sic ] custody or control as relate to the matters in controversy herein", included a request for service and complaint records subsequent to the accident. Counsel alleged that if he had suspected beforehand that it was plaintiffs' intention to request the records concerning service and complaints after the accident, he would have moved for a protective order. On the merits of the request by plaintiffs, counsel alerted Special Term to Getty v. Town of Hamlin, 127 N.Y. 636, 27 N.E. 399, and 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 821, 238 N.E.2d 927, for the proposition that subsequent service and repair records could not be discovered.

By order entered December 9, 1981, Special Term granted plaintiffs' motion for a continued examination before trial of defendant Armor. With respect to the production of records at that examination, Special Term ruled, inter alia, that:

"It is the further order of this Court that at the hereinabove directed oral deposition before trial the defendant, Armor Elevator Co., Inc., produce all appropriate and pertinent records relative to this matter including but not limited to * * * service records in connection with the elevator which is the subject of this lawsuit, and any records relative to complaints regarding the said elevator, all for a period of time six months prior to the incident herein and six months subsequent thereto".

By notice of motion dated May 19, 1982, defendant Armor moved (1) to reargue plaintiffs' motion for further discovery and (2) upon reargument to vacate that part of Special Term's order entered December 9, 1981 which allowed discovery of said defendant's service and complaint records concerning the elevator in question for the six month period subsequent to February 3, 1980, the date of the accident. By order dated June 10, 1982 reargument was denied.

Initially, it must be noted that the words used by Special Term in the order entered December 9, 1981, viz., "service records", are broad enough to include records of any repairs made to the elevator. To the extent that the language of the order appealed from encompasses the production of records of repairs made in connection with the subject elevator during the six month period subseque to the date of the accident, it clearly exceeded the bounds of proper discovery. 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 821, 238 N.E.2d 927,supra; Barone v. 111 East 39th St. Corp., 38 A.D.2d 797, 328 N.Y.S.2d 454; Carollo v. Rose, 43 A.D.2d 831, 350 N.Y.S.2d 929). Evidence of subsequent repairs may be admissible if an issue of control and maintenance exists (Scudero v. Campbell, supra; Olivia v. Gouze, 285 App.Div. 762, 140 N.Y.S.2d 438, affd. 1 N.Y.2d 811, 153 N.Y.S.2d 71, 135 N.E.2d 602), but this exception is inapplicable to the case at bar, since defendant Armor was concededly obligated to maintain and repair the elevator under its service contract with defendant Wes, the building owner.

The order entered December 9, 1981, also directs Armor to produce "records relative to complaints" regarding the subject elevator for the period of six months subsequent to the date of the accident in question. Clearly, the language of that order is broad enough to include discovery of records of subsequent accidents involving the elevator. It is Armor's position that discovery of records of subsequent accidents involving the subject elevator is impermissible, even if the subsequent accidents were similar in nature to the accident which is the subject of the instant action.

It has been consistently held, as defendant Armor itself concedes, that records of prior similar accidents are admissible and discoverable in a negligence action since they are relevant in establishing both (1) that a particular condition was dangerous and (2) that defendant had notice of same (Gastel v. City of New York, 194 N.Y. 15, 18, 86 N.E. 833; Hyde v. County of Rensselaer, 51 N.Y.2d 927, 434 N.Y.S.2d 984, 415 N.E.2d 972; Castleberry v. Hudson Val. Asphalt Corp., 60 A.D.2d 878, 401 N.Y.S.2d 278; Angelson v. New York R. Tr. Corp., 240 App.Div. 907, 267 N.Y.S. 844). As this court stated in Angelson v. New York R. Tr. Corp., supra, pp. 907-908, 267 N.Y.S. 844:

"evidence of prior, similar accidents at the place in question and knowledge thereof on the part of the defendant is relevant and material to plaintiffs' case to show a manifestly dangerous condition and defendant's knowledge and notice thereof, and they are...