Kraus v. Ford Motor Co.

• Decision Date: 09 December 1971
• Parties: Theodore W. KRAUS, as Administrator of the Estate of Theodora Kraus, Deceased, et al., Respondents v. FORD MOTOR CO., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 263

327 N.Y.S.2d 263

38 A.D.2d 680

Theodore W. KRAUS, as Administrator of the Estate of Theodora Kraus, Deceased, et al., Respondents v. FORD MOTOR CO., Appellant.

Supreme Court, Appellate Division, Fourth Department.

Dec. 9, 1971.

Ohlin, Damon, Morey, Sawyer & Moot, Richard E. Moot, Buffalo, for appellant.

William J. Wilkin, Buffalo, for respondents.

Before MARSH, J.P., and WITMER, GABRIELLI, MOULE and CARDAMONE, JJ.

MEMORANDUM:

In this negligence action for damages for wrongful death of plaintiff's intestate while a passenger in a 1969 Ford automobile which allegedly because of its defects left the highway and crashed, resulting in injury and death of plaintiff's intestate, it appears that directly after the accident certain parts of the automobile, particularly the rear axle bearing and wheel assembly, were delivered to the Buffalo Testing Laboratory in behalf of the plaintiff and were tested by that company. Defendant moved at Special Term to take the deposition of employees of that company having knowledge of said parts and tests, on the basis of 'special circumstances' existing 'as outlined' in the affidavit in support of the motion. In the affidavit defendant asserted that it was being required to produce its experts for examination by plaintiff and that it would be 'disadvantageous and prejudicial' to defendant to be required to submit to such examination 'without allowing the defendant * * * in turn to examine the experts employed by the plaintiff to testify at the time of trial regarding their opinions and findings as to the same rear end assembly now being examined by the expert employees of the defendant'. Defendant sought to have such proposed witnesses for the plaintiff 'state the substance of the facts and opinions' and the grounds therefor to which such witnesses will testify upon the trial.

Defendant acknowledges that plaintiff has not examined defendant's experts concerning their opinions and that the 'mutuality' argument does not apply in this respect. We find that Special Term properly denied this aspect of defendant's motion.

In its brief, defendant asserts that it does not now seek to examine plaintiff's said experts concerning their opinions but only 'as to the nature of their examination' of the alleged defective parts of the said automobile 'to determine if there was any change of condition as a result of their inspection and tests'. Defendant wishes to ascertain if the automobile parts which plaintiff has now...