Mosca v. Pensky

CourtUnited States State Supreme Court (New York)
Writing for the CourtFRANK S. McCULLOUGH
Citation73 Misc.2d 144,341 N.Y.S.2d 219
PartiesLeslie A. MOSCA, an infant over the age of 14 years, by her parent Shirley Mosca, and Shirley Mosca, individually, Plaintiffs, v. Denise PENSKY, an infant over the age of 14 years, by her parent Herbert Pensky, and Herbert Pensky, individually, Defendants. Herbert PENSKY, Third-Party Plaintiff, v. VILLAGE OF PELHAM MANOR et al., Third-Party Defendants.
Decision Date19 January 1973

Harold M. Foster, New York City, for defendant and third-party plaintiff, Herbert Pensky.

Jerome J. Goldstein, Mount Vernon, for plaintiffs.

Nayor & Edmiston, Yonkers, for Village of Pelham Manor, third-party defendant.

Clark, Gagliarei & Miller, White Plains, for Mains & Mains Electrical Corporation, third-party defendant.



Defendant Herbert Pensky moves for a protective order and plaintiffs cross-move for an order compelling the production of an insurance policy. The within motions raise significant issues regarding the application of our statement of readiness rule and pretrial disclosure of insurance coverage and limits. The Court shall consider the issues seriatim and dispose of the matter in accordance with the following opinion. On April 4, 1969 plaintiff Leslie Mosca was injured while crossing the Boston Post Road in the Village of Pelham Manor when she was allegedly struck by a motor vehicle operated by defendant Denise Pensky and owned by defendant Herbert Pensky. An action for personal injuries was commenced on May 5, 1969 wherein the injured plaintiff prays for $2,500,000 as damages and her father seeks $1,000,000 on his derivative claim. Issue was joined in August 1969 and a note of issue with statement of readiness was filed on January 13, 1970. Movant's answer admits ownership of the motor vehicle in question. In October or November of 1971 defendant Herbert Pensky served third-party summonses and complaints upon the Village of Pelham Manor and Mains & Mains Electrical Corporation. The third-party complaints pray for indemnity in the event that the third-party plaintiff (Herbert Pensky) is held responsible to plaintiffs. In December 1971 the Village of Pelham Manor moved to dismiss the third-party complaint, which motion was granted and an order entered on January 22, 1972. Subsequently, Mains & Mains Electrical Corporation moved for similar relief, which motion was granted on April 4, 1972. Thereafter by decision dated July 20, 1972 the court (Trainor, J.,) granted reargument, vacated the order of January 22, 1972, stayed entry of an order on the April 4, 1972 decision and reinstated the third-party complaints. An order was entered thereon on September 5, 1972 and separate notices of appeal filed by the third-party defendants on September 8, 1972 (the Village of Pelham Manor) and September 12, 1972 (Mains & Mains Electrical Corporation). The appeal by the Village stayed all proceedings at the trial level (CPLR 5519(a)(1)).

On October 10, 1972 counsel conferred with the calendar justice who recommended that a motion be made to sever the third-party actions so as to permit the main action to proceed to trial forthwith. Plaintiffs thereafter presented such a motion which this Court granted by decision dated October 20, 1972. Prior thereto, however, plaintiffs on October 11, 1972 served a notice for discovery and inspection on counsel for the defendants which calls for production of 'A full and complete original or true copy of the policy of automobile liability insurance covering the defendants herein and in force on April 4, 1969, including that portion of which indicates the limits of liability'.

At the outset the parties raise procedural questions pertaining to the timeliness of plaintiffs' notice. Movant initially urges that under the rules of the Appellate Division, Second Department, plaintiffs are barred from seeking discovery at this stage of the proceedings. Plaintiffs, in turn, urge that the appellate rules are inapplicable and, alternatively, that special circumstances exist which authorize discovery.

The appellate rule in point (22 NYCRR 675.7) provides in pertinent part that once an action is placed on the calendar by filing a statement of readiness and note of issue 'no pretrial examination or other preliminary proceedings may be had unless * * * unusual and unanticipated conditions subsequently develop which make it necessary that further pre-trial examinations or further preliminary proceedings be had'. The primary purpose of the aforesaid rule--commonly known as the statement of readiness rule--is to insure that only those cases which are actually ready for trial are placed on the calendar (Morrison v. Sam Snead Schools of Golf of N.Y., Inc., 13 A.D.2d 986, 216 N.Y.S.2d 397; Cerrone v. S'Doia, 11 A.D.2d 350, 206 N.Y.S.2d 95; 7 Carmody-Wait 2d, New York Practice, § 50.11). The rule is to be strictly enforced (Warren v. Vick Chemical Co., 37 A.D.2d 913, 325 N.Y.S.2d 495; Price v. Brody, 7 A.D.2d 204, 181 N.Y.S.2d 661) and when applicable the failure to use reasonable diligence in asserting a party's rights operates as a forfeiture to require 'relief from the statement of readiness rule' (Mallin v. Kossin, 25 A.D.2d 509, 266 N.Y.S.2d 579; see Belski v. New York Cent. RR., 38 A.D.2d 882, 329 N.Y.S.2d 345; Cassidy v. Kolonsky, 37 A.D.2d 880, 325 N.Y.S.2d 145; Fireproof Products Co., Inc., v. Trebuhs Realty Co., Inc., 30 A.D.2d 521, 290 N.Y.S.2d 523). Consequently, in the absence of special circumstances and after expiration of the time to move to vacate the statement of readiness, it has been held that the rule precludes the parties from thereafter obtaining examinations before trial (Belski v. New York Cent. RR., Supra; Warren v. Vick Chemical Co., Supra; Shields v. King David Bungalow Colony, 36 A.D.2d 642, 319 N.Y.S.2d 800; Andresen v. Waller Construction Corp., 28 A.D.2d 982, 283 N.Y.S.2d 651; Negron v. Kaufman, 26 A.D.2d 548, 271 N.Y.S.2d 605; Williams v. N.Y. City Tr. Auth., 23 A.D.2d 590, 256 N.Y.S.2d 708), bills of particulars (Wayne E. Edwards Corp. v. Romas, 36 A.D.2d 789, 319 N.Y.S.2d 84) and answers to interrogatories (Rudolph v. Bowling Corp., 67 Misc.2d 463, 324 N.Y.S.2d 448). Additionally, the rule has been held applicable on motions for discovery and inspection of designated items such as photographs and hospital records although such disclosure would not have impeded the progression of the case along the calendar (Muller v. Lustgarten, 32 A.D.2d 898, 301 N.Y.S.2d 663; Gettemuller v. J & M Leasing Corp., 29 A.D.2d 527, 285 N.Y.S.2d 667; Pioneer Jewelry Corp. v. All Continent Corp., 24 A.D.2d 436, 260 N.Y.S.2d 700). At bar it is to be noted that upon entry of the order severing the third-party actions the matter will be ready for trial assignment.

]However, rigid adherence to technical rules of procedure may not be permitted to interfere with the interests of substantial justice' (McGuire v. Pick, 8 A.D.2d 800, 187 N.Y.S.2d 893; see Van Blarcom v. Rogers, 11 A.D.2d 678, 202 N.Y.S.2d 441; Price v. Brody, 7 A.D.2d 204, 206, 181 N.Y.S.2d 661, 664, Supra). Under unusual circumstances disclosure may be had after the filing of a statement of readiness (Wahrhaftig v. Space Design Group, Inc., 33 A.D.2d 953, 306 N.Y.S.2d 863).

Plaintiffs contend that if the statement of readiness rule applies unusual conditions have developed since the filing of the certificate and that the interests of justice require disclosure. Plaintiffs assert that the unusual conditions herein are the reinstatement of the third-party actions and information received on October 10, 1972 that the prime defendants do not have sufficient coverage, whereas counsel for plaintiffs 'was led to believe from the outset that defendants had coverage 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 discovery sought by the third-party defendant)). Indeed, were the Court of the opinion that the statement of readiness rule applied to this case and in the absence of evidence that would work an estoppel upon movant herein, plaintiffs would be barred from utilizing disclosure devices on the ground of laches (Mallin v. Kossin, 25 A.D.2d 509, 266 N.Y.S.2d 579, Supra; cf. Fekeith v. New York City Tr. Auth., 65 Misc.2d 314, 317 N.Y.S.2d 463).

Nonetheless, the Court concludes that the rule does not apply where plaintiffs seek disclosure of insurance policy limits, assuming for the moment that the item is discoverable. Discovery of said item will in no way delay the trial of actions on the calendar nor be prejudicial to any party. The statement of readiness rule is not designed to thwart speedy resolution of matters actually ready for trial. Indeed, our local court rules are in the process of revision and it has been proposed that pretrial disclosure of insurance policy limits be required in all personal injury and wrongful death cases 'in which a statement of readiness has been filed' (Proposed Rule 780.23(a) of the Rules of Westchester County, Supreme Court.). Furthermore, it has been recognized that disclosure of policy limits may be most profitably exploited at a pretrial conference (M. Rosenberg, The Pre-Trial Conference and Effective Justice (Col. U. Press 1964), passim) and tort matters are not usually pretried in this department until after the statement of readiness has been filed (22 NYCRR 675.10). Consequently, it is implicit that the appellate regulations in point may not be read to preclude discovery of insurance policy limits.

The question next arises as to whether an insurance policy or the monetary limits specified therein constitute discoverable items. Prior to reaching those questions it is necessary to briefly discuss the procedural framework whereby discovery is obtained and the...

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    ...of insurance policies (CPLR 3101(f)), added by L.1975, ch. 668, which codifies Mr. Justice McCullough's ruling in Mosca v. Pensky, 73 Misc.2d 144, 341 N.Y.S.2d 219, rvd. 42 A.D.2d 708, 345 N.Y.S.2d 606, affd. 35 N.Y.2d 764, 362 N.Y.S.2d 148, 320 N.E.2d 864), pretrials and compulsory arbitra......
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