Nussdorf v. Howell

• Decision Date: 06 November 1974
• Citation: 79 Misc.2d 801,361 N.Y.S.2d 122
• Parties: Ellen NUSSDORF et al., Plaintiffs, v. Robert J. HOWELL et al., Defendants. George POSTAL, as Administrator of the Goods, Chattels and Credits of Ronni Postal, Deceased, Plaintiff, v. NISSAN MOTOR CORPORATION IN U.S.A. et al., Defendants. WIDE'S MOTOR SALES CORP., Defendant and Third Party Plaintiff, v. Allen A. SYLVANE, Third-Party Defendant. Michael FRISAMENT, Plaintiff, v. Allen SYLVANE, Defendant.
• Court: New York Supreme Court

Page 122

361 N.Y.S.2d 122

79 Misc.2d 801

Ellen NUSSDORF et al., Plaintiffs, v. Robert J. HOWELL et al., Defendants.

George POSTAL, as Administrator of the Goods, Chattels and Credits of Ronni Postal, Deceased, Plaintiff, v. NISSAN MOTOR CORPORATION IN U.S.A. et al., Defendants.

WIDE'S MOTOR SALES CORP., Defendant and Third Party Plaintiff, v. Allen A. SYLVANE, Third-Party Defendant.

Michael FRISAMENT, Plaintiff, v. Allen SYLVANE, Defendant.

Supreme Court, Special Term, Queens County, Part 1.

Nov. 6, 1974.

Samuel G. Rabinor, Jamaica, for plaintiffs Nussdorf, etc. in Action no. 1.

Shapiro, Schlissel, Shiff, Beilly & Fox, New York City, for defendant and third party plaintiff Wide's Motor Sales Corp.

Shayne, Dachs, Weiss, Kolbrener, Stanisci and Moe Levine, Mineola, for plaintiff Ackerman in Action No. 1.

Pizzitola & DiBlasi, Brooklyn, for defendant Howell.

Ponzan & Goldblum, Forest Hills, for defendant Prisament in Action No. 2.

William H. Morris, New York City, for defendant Triboro Bridge in Action No. 2.

Donald E. Deegan, Garden City, for defendant Sylvane.

Ira H. Newman, New York City, for plaintiff in Action No. 2.

Norman Miles, New York City, for plaintiff Prisament in Action No. 3.

MEMORANDUM

LEONARD L. FINZ, Justice.

This is a motion by plaintiff in Action No. 2 to examine the plaintiffs in Action No. 1. In a joint trial ordered previously by the court, the moving party is not a coplaintiff with the aforementioned plaintiffs nor is there any connection between them in this action other than that the actions are to be jointly tried.

CPLR 3101(a)(4) permits the examination of 'any person where the court on motion determines that there are adequate special circumstances.' Under the cases and rulings made in regard to this question, it would appear that a party to an action may examine even those persons who are not parties to that action or to any related action. Lombardo v. Pecora, 23 A.D.2d 460, 262 N.Y.S.2d 201, represented a reversal of the prior policy wherein examination among parties who had no claim against each other were not permitted to examine each other.

'We are urged to reconsider the rule enunciated in Johansen v. Gray (279 App.Div. 108, 108 N.Y.S.2d 35, supra.)

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 discarded. We also believe that, in the interest of achieving uniformity of practice in the several judicial departments of the State, we should now hold that full pretrial examinations of codefendants Inter sese should be allowed with respect to all evidence which is material and necessary, even in the absence of a cross claim by the moving codefendant against the codefendant sought to be examined.' (Lombardo v. Pecora, 262 N.Y.S.2d 201, 202.)

Since then the courts have moved beyond the language of Lombardo, supra, which seemed to impose a restriction that the discovery be limited to parties in the same action, and extended the rule of liberal discovery to joint actions.

'* * * We would think that...