Lombardo v. Pecora

• Decision Date: 19 July 1965
• Citation: 262 N.Y.S.2d 201,23 A.D.2d 460
• Parties: Vito LOMBARDO, Plaintiff-Respondent, v. Cono Louis PECORA, Defendant-Appellant; Pierce Coach Lines, Inc., and Edward C. Mulchinski, Defendant-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 201

262 N.Y.S.2d 201

23 A.D.2d 460

Vito LOMBARDO, Plaintiff-Respondent, v. Cono Louis PECORA, Defendant-Appellant; Pierce Coach Lines Inc., and Edward C. Mulchinski, Defendant-Respondents.

Supreme Court, Appellate Division, Second Department.

July 19, 1965.

Eugene G. Lamb, Mineola of counsel (Patrick F. Adams, Mineola, attorney), for defendant-Appellant.

Robert Hill Nix and Paul A. Crouch, New York City, of counsel (Chamberlin, Hartig & Ross, New York City, attorneys), for defendants-respondents.

No brief or appearance for plaintiff-respondent.

Before BELDOCK, P. J., and CHRIST, BRENNAN, HILL and RABIN, JJ.

CHRIST, Justice.

The single issue presented by this appeal is whether a defendant in a personal injury action should be permitted to examine his codefendants before trial where no cross claims have been asserted among them.

Generally, the policy of this court has been not to permit such pretrial examinations (Johansen v. Gray, 279 App.Div. 108, 108 N.Y.S.2d 35). In the First and Third Judicial Departments, however, a contrary policy has prevailed; such pretrial examinations have been allowed (Frost v. Walsh, 275 App.Div. 1017, 91 N.Y.S.2d 746; Schneider v. Doyle, 6 A.D.2d 122, 175 N.Y.S.2d 595).

In the case at bar, plaintiff was a passenger in the car of the defendant Pecora when it collided with the car owned by the codefendant Pierce and operated by the codefendant Mulchinski. The suit by plaintiff is against the three defendants. There are no cross claims among the three codefendants, but each of them has denied the plaintiff's allegations of negligence.

We are urged to reconsider the rule enunciated in Johansen v. Gray (279 App.Div. 108, 108 N.Y.S.2d 35, supra.) We agree that, in the light of the new Civil Practice Law and Rules and the changing attitudes concerning pretrial examinations, such reconsideration in necessary. In 1951, when Johansen was decided, the rule still obtained that pretrial examinations were usually accorded only to the party having the burden of proof. In the following year (1952) this limitation as to the burden of proof was removed by the adoption of rule 121-a of the former Rules of Civil Practice. The changes made by the present statute (CPLR 3101, subd. [a]) are even more extensive. That statute, in pertinent part, provides that: 'There shall be full disclosure or all evidence material and necessary in the prosecution or defense of an action, regardless of the burden of proof.'

In addition to creating a divergence of views in the several Judicial Departments of the State, the Johansen rule has also resulted in conflicting decisions in our own Department (cf. Di Tucci v. Donatelli, 19 Misc.2d 376, 189 N.Y.S.2d 728, with Di Geronimo v. Plotnick, 39 Misc.2d 497, 240 N.Y.S.2d 908; See also Carmody-Forkosch, New York Practice, p. 564, footnote 43).

Two of the text writers on the subject prefer the rule in Frost (275 App.Div. 1017, 91 N.Y.S.2d 746, supra) and Schneider (6 A.D.2d 122, 175 N.Y.S.2d 595, supra) which freely allows the pretrial examination of one codefendant by another (Carmody-Forkosch, op. cit., supra, pp. 563-64; 3 Weinstein-Korn and Miller, New York Civil Practice, p3101.23, pp. 31-26 to 31-27).

We believe that the text of the present statute (CPLR 3101, subd. [a]), which provides for full disclosure without regard to burden of proof, has rendered obsolete our decision in the Johansen case and that its rule should be...