Pataki v. Kiseda

• Decision Date: 13 April 1981
• Citation: 437 N.Y.S.2d 692,80 A.D.2d 100
• Parties: Anthony M. PATAKI, as Administrator, etc., Respondent, v. James KISEDA et al., Defendants; Steven W. Carroll et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 692

437 N.Y.S.2d 692

80 A.D.2d 100

Anthony M. PATAKI, as Administrator, etc., Respondent, v. James KISEDA et al., Defendants Steven W. Carroll et al., Appellants.

Supreme Court, Appellate Division, Second Department.

April 13, 1981.

Vincent P. Nesci, P. C., Yonkers (Brian J. Daly, Yonkers, on the brief), for appellants.

Finkelstein, Mauriello, Kaplan & Levine, Newburgh (Judith L. Lubinsky and Duncan W. Clark, Newburgh, of counsel), for respondent.

Before MOLLEN, P. J., and HOPKINS, TITONE and WEINSTEIN, JJ.

WEINSTEIN, Justice.

This appeal places before this court a rather unusual situation in which two subdivisions of the same section of the CPLR, when read together, appear to require directly contradictory actions. The subdivisions in question are subdivisions (d) (par. 2) and (g) of section 3101, and the subject of this appeal is the discoverability of an accident report which was apparently prepared exclusively in preparation for litigation.

On April 16, 1978 Margaret Pataki was killed when the automobile in which she was riding collided with a bus driven by appellant Steven Carroll and operated by appellant Liberty Lines. Anthony Pataki, as administrator of the estate of the deceased, brought this action to recover damages for wrongful death and conscious pain and suffering.

The plaintiff served a Notice to Take Deposition upon Oral Examination upon the bus driver and the bus company. He requested that they produce at the examination, among other items, "(a)ny and all inter-company reports of the accident". The appellants moved for a protective order with respect to such reports, admitting that driver Carroll had made such a report, but maintaining that since it was sent directly to counsel and made a part of its litigation files, it was protected from discovery by paragraph 2 of subdivision (d) of section 3101 of the CPLR. Plaintiff opposed the motion, asserting that the movants had not set forth sufficient proof that the only report made was prepared exclusively for litigation. Special Term denied the motion for a protective order, and the bus driver and bus company now appeal.

The order from which this appeal is taken was made July 31, 1980. At that time, the controlling law was indeed subdivision (d) (par. 2) of section 3101 of the CPLR, which provided that "any writing or anything created by or for a party or his agent in preparation for litigation" was not discoverable, absent certain conditions not present here. This provision, as interpreted by the courts, was limited to reports created exclusively in preparation for litigation (see Braun v. Great Atlantic & Pacific Tea Co., 67 A.D.2d 898, 413 N.Y.S.2d 181; Soifer v. Mount Sinai Hosp., 63 A.D.2d 713, 405 N.Y.S.2d 116; O'Neill v. Manhattan & Bronx Surface Tr. Operating Auth., 27 A.D.2d 185, 277 N.Y.S.2d 771). As noted by this court in Carlo v. Queens Transit Corp., 76 A.D.2d 824, 428 N.Y.S.2d 298, "(i)f such documents are intended for purposes beyond that of litigation, e. g., as efficiency reports, or disciplinary or personnel records, they are 'Multi-motived' and do not warrant immunity" (see, also, Mold Maintenance Serv. v. General Acc. Fire & Life Assur. Corp., 56 A.D.2d 134, 392 N.Y.S.2d 104; Kaiser v South Nassau Communities Hosp., 58 A.D.2d 643, 396 N.Y.S.2d 54; Millen Inds. v. American Mut. Liab. Ins. Co., 37 A.D.2d 817, 324 N.Y.S.2d 930; Green v. Carey Transp., 38 A.D.2d 711, 329 N.Y.S.2d 331). In addition, the burden was on the party seeking the protective order to show that the report was intended exclusively for litigation (see Koump v. Smith, 25 N.Y.2d 287, 303 N.Y.S.2d 858, 250 N.E.2d 857; Chemical Bank v. National Union Fire Ins. Co. of Pittsburgh, Pa., 70 A.D.2d 837, 418 N.Y.S.2d 23).

Such was the state of the law at the time the order in question was made. We note, as appellants urge, that the facts are virtually indistinguishable from those in O'Neill v. Manhattan & Bronx Surface Tr. Operating Auth. (supra), and since discovery was denied there, it may be that Special Term herein erred in construing the law in effect at the time it considered this matter. But we need not reach a conclusion on that particular question, because subsequent to the decision at Special Term, but prior to the submission of this appeal to this court, subdivision (g) of section 3101 of the CPLR became effective (see L.1980, ch. 283). That subdivision provides that "(e)xcept as is otherwise provided by law, in addition to any other matter which may be subject to disclosure, there shall be full disclosure of any written report of an accident prepared in the regular course of business operations or practices of any person, firm, corporation, association or other public or private entity, unless prepared by a police or peace officer for a criminal investigation or prosecution and disclosure would interfere with a criminal investigation or prosecution." The general rule is that procedural statutes which do not have the effect of creating a new remedy are retroactively applied (see Matter of Beary v. City of Rye, 44 N.Y.2d 398, 410, 406 N.Y.S.2d 9, 377 N.E.2d 453; Matter of Clayton v. Clement, 33 N.Y.2d 386, 353 N.Y.S.2d 173, 308 N.E.2d 690; McKinney's Cons. Laws of N.Y., Book 1, Statutes, § 55; cf. Shielcrawt v. Moffett, 294 N.Y. 180, 61 N.E.2d 435); indeed, this rule has been interpreted to require retroactive application of another subdivision of section 3101 of the CPLR (see Verley v. Trudeau, 84 Misc.2d 58, 375 N.Y.S.2d 265). We therefore hold that the subdivision (g) should be considered in the determination of this appeal; our analysis will treat both subdivision (d) (par. 2) and subdivision (g) as applicable law. Accordingly, the cases cited above dealing with discoverability of reports prepared partially or exclusively for litigation, but decided before the effective date of subdivision (g), are no longer of value as precedent in determining the issue before this court. New analysis of the issue is necessary. The question is whether the sweeping language of subdivision (g) renders discoverable the report in question even if it had been prepared exclusively for litigation.

We note immediately the inherent anomaly which has been spawned by the enactment of subdivision (g). A written accident report prepared in the regular course of business operations for use solely in preparation for litigation is now discoverable under subdivision (g) but protected from discovery by subdivision (d) (par. 2)! This inherent contradiction has been noted by Professor Siegel in his Supplementary Practice Commentaries to the CPLR (McKinney's Cons. Laws of N.Y., Book 7B, CPLR 3101:33, pp. 8-10), but we are aware of no court which has, during the brief life of subdivision (g), issued an authoritative ruling on the relative priority to be afforded the two subdivisions. The answer to this question of...