Lachowitz v. Child's Hospital
| Decision Date | 28 November 1961 |
| Citation | 225 N.Y.S.2d 123,32 Misc.2d 386 |
| Parties | Edward A. LACHOWITZ, Plaintiff, v. CHILD'S HOSPITAL, Defendant. CHILD'S HOSPITAL, Defendant and Third-Party Plaintiff, v. IRWIN ELEVATOR COMPANY, Inc., Third-Party Defendant. |
| Court | New York Supreme Court |
Whalen, McNamee, Creble & Nichols, Albany, for plaintiff.
Dugan, Casey, Burke & Lyons, Albany, for defendant and third-party plaintiff.
Donohue & Bohl, Albany, for third-party defendant, Irwin Elevator Co., Inc.
This is a motion on behalf of the Third-Party Defendant, Irwin Elevator Company, Inc., whom I shall refer to as Irwin, pursuant to sections 290, 292, 324 of the Civil Practice Act and rule 150 of the Rules of Civil Practice for orders directing the Plaintiff and the Defendant to produce for examination before trial the agents of plaintiff and defendant or their attorneys, who subsequent to May 3, 1960 inspected a certain elevator and the mechanism attached thereto at Child's Hospital, Albany, New York; to produce for the discovery and inspection and copying by Irwin such records, data, notes, memoranda, photographs, results of metallurgical tests obtained during and pertaining to the inspection and examinations aforementioned on the grounds that such agents and material are under the exclusive control of said plaintiff and defendant; to strike this case from the Albany Supreme Court Calendar on the grounds that the said action is not ready for trial and that the Note of Issue filed is premature.
The first question for determination is whether or not these agents of the plaintiff and defendant or their attorneys should be examined before trial.
Section 288 of the Civil Practice Act provides, in part:
'Any party to such an action also may cause to be so taken the testimony of any other person, which is material and necessary, where * * * other special circumstances render it proper that his deposition should be taken.'
This is an action by the plaintiff for damages sustained by him as a result of the fall of an elevator located in the defendant's hospital. Such accident occurred on May 3, 1960 sometime before noon. Apparently, since Irwin, pursuant to contract, had made semi-monthly inspections of the elevator in question, the last of which was about two weeks before the accident, they were called immediately and two men dressed in the uniform of Irwin appeared to extricate the plaintiff.
It also appears that later and before 1:00 P. M. the president and another employee from Irwin appeared at the hospital. While it is suggested that they made an examination, there is nothing to conclude that any of the four were experts or whether the examinations which were made were more than cursory since the company, at that time, was no longer under contract with the hospital to inspect the elevator and had little reason, therefore, to suspect they would be joined in this litigation.
While such recital might seem to suggest the existence of 'special circumstances' warranting an examination, this Court does not feel that such is the case. The witnesses now sought to be examined were experts retained after the accident, and the attorney who accompanied these experts, none of whom have any direct knowledge of the happening of the accident. They were not in control of nor did they operate the instrumentality which produced it. (Kallen v. Nassau Co. Bridge Authority, 281 App.Div. 765, 118 N .Y.S.2d 107.)
For those reasons, the motion requesting an examination before trial must be denied.
It now appears that the elevator and its components have been reduced to scrap and the question next presented is whether or not a discovery and inspection should be permitted.
Section 324 of the Civil Practice Act provides, in part:
'A court of record, * * * by order may compel a party, * * * to an action pending therein to produce and discover, or to give to the other party, an inspection and copy, or permission to take a copy or photograph of a book, document, or other paper, or to make discovery of any article or property, in his possession or under his control, relating to the merits of the action, or of the defense therein.'
At first blush, and of a disturbing nature, is the thought that the discovery and inspection now sought generally is of the so-called 'work product' of the attorneys and their experts and for that reason should be denied. (Aquamarine Compania Naviera v. London & Overseas Ins. Co., Ltd., et al., 11 A.D.2d 926, 205 N.Y.S.2d 8.)
However, we must bear in mind first that the work product of the lawyer is not specifically privileged. (Civ.Prac. Act, § 353.)
While heretofore such material generally has been immune from discovery, the policy of liberality which has been pursued has brought about a gradual relenting, at least, in this Department.
One of the first breakthroughs of what was once regarded as an immutable rule, appears in the case of Wilhelm v. Abel, et al., 1 A.D.2d 55...
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...far in excess of the minimums required by law'. The court finds this argument singularly unimpressive (cf. Lachowitz v. Child's Hospital, 32 Misc.2d 386, 225 N.Y.S.2d 123 (where filing of statement of readiness in main action prior to joinder of third-party action was held not a bar to disc......
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...discovery and inspection is available only as to documents which are themselves evidence no longer seems to hold true. (Lachowitz v. Child's Hospital, 32 Misc.2d 386, 225 N .Y.S.2d Therefore, for the reasons stated the motion is granted and defendant is directed to supply written transcript......
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