Nomako v. Ashton

• Decision Date: 27 February 1964
• Parties: Carolyn NOMAKO, also known as Lyn Rossi, Plaintiff-Respondent, v. Joseph J. ASHTON, also known as J. J. Ashton, also known as Court Ashton, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 230

247 N.Y.S.2d 230

20 A.D.2d 331

Carolyn NOMAKO, also known as Lyn Rossi, Plaintiff-Respondent, v. Joseph J. ASHTON, also known as J. J. Ashton, also known as Court Ashton, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Feb. 27, 1964.

Robert G. Tischler, New York City, of counsel (Tischler & Tischler, New York City, attorneys), for plaintiff-respondent.

Bernard J. Coven, New York City, for defendant-appellant.

Before BREITEL, J. P., and VALENTE, McNALLY, STEVENS and EAGER, JJ.

PER CURIAM.

The question on this appeal is whether under Article 31 of the new Civil Practice Law and Rules the plaintiff in a slander action is entitled to a general unrestricted examination before trial of the defendant. Special Term denied defendant's motion to strike plaintiff's notice of examination before trial. The court concluded that previous authority restricting general examinations on all of the issues in defamation actions was no longer applicable under the Civil Practice Law and Rules.

Since New York County Supreme Court Trial Term Rule XI restricting pretrial examinations in certain cases no longer exists and in view of the advent of the Civil Practice Law and Rules with its provision for protective orders, the order of Special Term denying the motion to strike should be affirmed.

Many years ago this Court ruled that examinations before trial in negligence and certain other tort cases would not be permitted except in unusual circumstances. That early view was said to be based upon considerations of sound public policy. (See Shaw v. Samley Realty Co., Inc., 201 App.Div. 433, 435-436, 194 N.Y.S. 531, 532-533; Preiss v. O'Donohue, 173 App.Div. 121, 122-123, 159 N.Y.S. 397, 398-399; cf. Goodman v. Stein, 261 App.Div. 548, 26 N.Y.S.2d 169.)

Earlier in Oakes v. Star Co., 119 App.Div. 358, 104 N.Y.S. 244, this Court had refused to permit an examination of plaintiff by defendant in a libel action. In Welling v. Kugel, 215 App.Div. 770, 213 N.Y.S. 934, this Court affirmed without opinion the decision of Special Term which struck plaintiff's notice to examine defendant in a slander action citing Shaw v. Samley Realty Co., Inc., supra.

The New York County Supreme Court Trial Terms Rule XI(7) and Bronx County Supreme Court Special and Trial Terms Rule XX(7), adopted on March 10, 1954 and repealed September 1, 1963, simply codified the several restrictions developed in the cases. Since defamation actions were among those 'not favored on the ground of public policy', the old rule remained unchanged despite the innovation of general rules liberalizing pretrial examination procedure in actions generally. (See Olian v. Random House, Inc., 205 Misc. 878, 130 N.Y.S.2d 787 [Steuer, J.].) Consequently, general examinations in libel and slander cases continued to be prohibited (see, e. g., Kollsman Instrument Corporation v. Daily Mirror, Incorporated, 7 A.D.2d 975, 183 N.Y.S.2d 525 [libel]; Murphy v. New York World-Telegram Corp., 8 A.D.2d 800, 188 N.Y.S.2d 271 [libel]; Dubrul v. Arden, N.Y.L.J., Nov. 12, 1959, p. 14 col. 1 [slander]). Of course, limited examinations in defamation cases had been permitted under special circumstances. For example, if plaintiff did not know the exact words written or spoken of him or the extent of their publication, it was held necessary for him to examine concerning that (see, e. g., Mason v. New York Review Publishing Co., 154 App.Div. 651, 139 N.Y.S. 639 [libel]; Wolf v. Gold, N.Y.L.J., Dec. 18, 1959, p. 10, col. 3 [slander]; Arnold Bernhard & Co. v. Tobacco Leaf Publishing Co., Sup., 148 N.Y.S.2d 639 [libel]; cf. Malus v. Sperry Corp., 282 App.Div. 939, 124 N.Y.S.2d 911 [libel]; Ginsberg v. Farmers National Bank of Hudson, 20 Misc.2d 874, 195 N.Y.S.2d 481 [slander]).

Even before the advent of the Civil Practice Law and Rules, this Court had held that special circumstances need not be shown in order to obtain an examination before trial in actions for malicious prosecution or assault (see Miller v. Shopwell Foods, Inc., 2 A.D.2d 362, 156 N.Y.S.2d 208; Reich v. Gross, 6 A.D.2d 559, 180 N.Y.S.2d 374).

The new enactment starts with the assumption of full disclosure, and then provides for protective orders in the event the discovery sought is found abusive or otherwise unwarranted (see CPLR §§ 3101, 3103). The repealing of the restrictive rules was intended to conform to the larger purpose of the new procedural enactment. Consequently, there should no longer be any special rule against examinations before trial in defamation actions. There is no longer persuasive reason for a general policy against examinations in intentional tort cases, including defamation actions. Moreover, such examinations have been permitted in the Second and Third Departments (see, e. g., Milner v. Long Island Daily Press Publishing Co., 10 A.D.2d 519, 205 N.Y.S.2d 14; Dieterle v. Universal Publishing & Distribution Corporation, 38 Misc.2d 973, 239 N.Y.S. 416).

Even under the liberalized Civil Practice Law and Rules, however, pretrial examination should still be...