Montag v. Young Men's Christian Ass'n of Oneida County

• Decision Date: 29 July 1982
• Citation: Montag v. Young Men's Christian Ass'n of Oneida County, 471 N.Y.S.2d 437, 122 Misc.2d 382 (N.Y. Sup. Ct. 1982)
• Parties: Helen MONTAG, Plaintiff, v. YOUNG MEN'S CHRISTIAN ASSOCIATION OF ONEIDA COUNTY, Defendant.
• Court: New York Supreme Court

Page 437

471 N.Y.S.2d 437

122 Misc.2d 382

Helen MONTAG, Plaintiff, v.YOUNG MEN'S CHRISTIAN ASSOCIATION OF ONEIDA COUNTY, Defendant.

Supreme Court, Onondaga County.

July 29, 1982.

Marc Jonas, Utica, for plaintiff.

Louis S. Petrone, P.C., Utica, for defendant.

DECISION

JOHN R. TENNEY, Justice.

In this case, the right to examine statements or reports made by an insured to an insurance company is placed at issue.There are three written reports involved.One is a note allegedly sent by an employee to the defendant's executive director.Since the affidavits indicate that this note is not available, it will not be considered in this proceeding.The other two statements were prepared at the insistence of the defendant's insurance carrier.Thus, in this case there is brought into issue an apparent conflict between CPLR 3101(d) and (g).Subsection (d) states in part:

"The following shall not be obtainable unless the court finds that the material can no longer be duplicated because of a change in conditions and that withholding it will result in injustice or undue hardship: * * *

(2) any writing or anything created by or for a party or his agent in preparation for litigation."

Various cases address the problem, and the statute was interpreted to read that if the writing was prepared exclusively for litigation, it was protected.SeeNicholson v. Henderson, 29 A.D.2d 939, 289 N.Y.S.2d 381;Weaver v. Waterville Knitting Mills, Inc., 78 A.D.2d 574, 432 N.Y.S.2d 419.Inquiry was permitted to determine the circumstances under which the item was secured and prepared.Corona Courts v. Frank G. Shattuck Co., 50 Misc.2d 1066, 272 N.Y.S.2d 217.On the other hand, if a report was prepared for the benefit of an employer as part of his regular course of business, it has been held to be discoverable.Moon v. MacKay, 64 A.D.2d 1022, 409 N.Y.S.2d 305;Bojanek v. Niagara Frontier Tr. System, 25 A.D.2d 486, 266 N.Y.S.2d 846.SeeWeisgold v. Kiamesha Concord, Inc., 51 Misc.2d 456, 273 N.Y.S.2d 279, where a report was subject to discovery even though it was sent directly to an attorney.

However, statements made to a liability insurance carrier have been generally held to be immune from disclosure.Kandel v. Tocher, 22 A.D.2d 513, 256 N.Y.S.2d 898;Finegold v. Lewis, 22 A.D.2d 447, 256 N.Y.S.2d 358.The question before the court is whether the principles established by these cases were intended to be changed by the passage of CPLR 3101(g) which states:

"Accident reports Except as is otherwise provided by law, * * * there shall be full disclosure of any written report of an accident prepared in the regular course of the business operations or practices of any person, firm, corporation, association or other public or private entity."

In Pataki v. Kiseda, 80 A.D.2d 100, 437 N.Y.S.2d 692, the court held that if there is a conflict between subdivision (d) and subdivision (g) of Section 3101, subdivision (g) is to be controlling.Thus, it was concluded at page 103, "all accident reports whether or not prepared exclusively in preparation for litigation are discoverable".This conclusion acknowledged an existing policy consideration which mandates a broad construction of the discovery rules and a liberal interpretation of the appropriate statutes to facilitate the determination of civil disputes.SeeChaplin v. Pathmark Supermarkets, 107 Misc.2d 541, 435 N.Y.S.2d 497;Hoenig v. Westphal, 52 N.Y.2d 605, 439 N.Y.S.2d 831, 422 N.E.2d 831(discoverability of an attending physician's report).

A different conclusion was reached in Masters v. Hassenpflug, 110 Misc.2d 998, 443 N.Y.S.2d 210, Supreme Court, 3rd Dept., in that an accident report to an insurance company was found to be immune from disclosure.In making this determination, Supreme Court Justice Hughes relied upon the legislative history of CPLR 3101(g) which allegedly intended to be a codification of the case law as indicated by the comments of the bill's sponsor.(N.Y.Legis.Ann., 1980, p. 131)Justice Hughes also felt bound by "16 years of carefully reasoned decisional law beginning with Judge Breitel's decision in Kandel v. Tocher, 22 A.D.2d 513[256 N.Y.S.2d 898]."

Thus, there is a judicial conflict in the interpretation of these two parts of Section 3101.The legislature intends to continue the rules protecting material prepared exclusively for litigation.(N.Y.Legis.Ann.1980, p. 131)However, Section 3101(g) appears to be a departure if the written material is in the nature of an accident report.The reasoning being, that accident reports normally result from the regular internal operation of an enterprise and are generally not prepared exclusively for litigation.(N.Y.Legis.Ann.1980, 131)

Earlier cases suggest that this conclusion had judicial support.In Bloom v. N.Y. City Transit Auth., 20 A.D.2d 687, 246 N.Y.S.2d 414, a public carrier was required to produce reports and statements of employees about the accident when the carrier was being sued.Judge Breitel saw no inconsistency because the materials constituting the accident reports were part of a normal business routine.Kandel v. Tocher, 22 A.D.2d 513, 516, 256 N.Y.S.2d 898.He cited other authorities for his position; 3 Weinstein-Korn-Miller, N.Y.Civ.Prac., par. 3101.54;Prof. David Siegel, Commentaries, McKinney'sCons.Laws CPLR 7B.

The court in Pataki v. Kiseda, 80 A.D.2d 100, 104, 437 N.Y.S.2d 692, gives credence to the same authorities: "since there is nothing in subdivision (g) to immunize the report even if made solely for litigation, the fact that it had that sole...