Rios v. Donovan

• Decision Date: 16 June 1964
• Docket Number: No. 2,No. 1,1,2
• Citation: 250 N.Y.S.2d 818,21 A.D.2d 409
• Parties: Pedro RIOS, Plaintiff-Respondent, v. Donald Francis DONOVAN, Paul Donovan and John A. Donovan, Defendants-Appellants. ActionDonald Francis DONOVAN and Paul Donovan, Third-Party Plaintiffs-Appellants, v. Carmello Thomas ANDOLINA, Third-Party Defendant-Appellant. Pedro RIOS, Plaintiff-Respondent, v. Carmello Thomas ANDOLINA, Defendant-Appellant. Action
• Court: New York Supreme Court — Appellate Division

Page 818

250 N.Y.S.2d 818

21 A.D.2d 409

Pedro RIOS, Plaintiff-Respondent, v. Donald Francis DONOVAN, Paul Donovan and John A. Donovan,

Defendants-Appellants.

Action No. 1.

Donald Francis DONOVAN and Paul Donovan, Third-Party Plaintiffs-Appellants, v. Carmello Thomas ANDOLINA, Third-Party Defendant-Appellant.

Pedro RIOS, Plaintiff-Respondent, v. Carmello Thomas ANDOLINA, Defendant-Appellant.

Action No. 2.

Supreme Court, Appellate Division, First Department.

June 16, 1964.

Edward Ash, New York City, of counsel (William N. Mairs, Jr., New York City, with him on the brief; Alexander, Ash & Schwartz, New York City, attorneys), for appellants Donald Francis Donovan and Paul Donovan.

Austin W. Erwin, Genese, for appellant John A. Donovan.

Benjamin Ira Gertz, Forest Hills (Martin, Clearwater & Bell, New York City, attorneys), for appellant Carmello Thomas Andolina.

David Hirschhorn, New York City, for respondent Pedro Rios.

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

VALENTE, Justice.

The appellant herein--as permitted by CPLR Rule 3122--moved for, but was denied, a protective order under CPLR § 3103 vacating items 9 and 10 of a notice of discovery and inspection sought under CPLR Rule 3120. For the reasons hereinafter indicated, the order denying the vacatur of these items should be reversed.

The action is for substantial damages for personal injuries sustained by plaintiff on June 22, 1960, his first day of employment on a farm in Livingston County, New York. He alleges that he fell from the rear of a truck used in harvesting a crop of peas when one of the defendants started it without warning; and that, as a consequence, his neck was broken, and he became paralyzed in his arms and legs (quadraplegia).

The two items involved upon this appeal as set forth in the notice read:

'9. All statements, reports or other writings obtained from persons who claim they posses knowledge an information concerning plaintiff's accident on June 22, 1960, obtained prior to the commencement of this law suit by defendants or their agents.

'10. Names and addresses of each person present in the fields of John Donovan, Mt. Morris, New York for and including the day of June 22, 1960; names and addresses of those persons who have given written or oral statements to defendants or their counsel stating that they have knowledge and information concerning the incident or surrounding circumstances.'

In the briefs before this Court, the parties have argued the availability of CPLR Rule 3120 to obtain statements of witnesses in the possession or control of an adverse party. As indicated hereinafter no definitive ruling can be made upon that perennially thorny problem in the present state of the record. Plaintiff's right to relief will have to be deferred until plaintiff is in a position to designate specifically the documents sought to be discovered.

The disclosure provisions of Article 31 of the CPLR were intended to enlarge the permissible use of pre-trial procedure. The purpose of disclosure procedure is to advance the function of a trial to ascertain truth and to accelerate the disposition of suits. Apart from the express provision of CPLR § 104 that the CPLR 'shall be liberally construed to secure the just, speedly and inexpensive determination of every civil judicial proceeding', the courts would in any event construe the new statute broadly to effectuate its purpose.

CPLR § 3101(a) provides that 'There shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action, regardless of the burden of proof.' However, subd. (b) of § 3101 states that privileged matter shall not be obtainable upon objection of a party, and subd. (c) excludes from disclosure 'The work product of an attorney'. Moreover, under subd. (d) 'any writing or anything created by or for a party or his agent in preparation for litigation' is not obtained by disclosure unless the court finds that 'withholding it will result in injustice or undue hardship'.

The problem of discovery of statements of witnesses under any of the provisions of Article 31 of the CPLR is thus circumscribed by the exception in CPLR § 3101 regarding privileged matter and the work product of an attorney. Before the enactment of the CPLR, this Court, in Beyer v. Keller, 11 A.D.2d 426, 207 N.Y.S.2d 591, upon an application for discovery pursuant to Section 324 of the Civil Practice Act, now CPLR Rule 3120, permitted the plaintiff to inspect a statement given--to a representative of an insurance carrier two days after the accident--by the mother of an injured infant. This extended the ruling in Totoritus v. Stefan, 6 A.D.2d 123, 175 N.Y.S.2d 802, which allowed the inspection of a statement made by a party to his adversary. Under CPLR § 3101 (e) it is now specifically provided that a party may obtain a copy of his own statement in the possession of an adversary. In keeping with this Section, Briggs v. Spencerport Road Plaza, Inc., 19 A.D.2d 943, 244 N.Y.S.2d 17 (4th Dept.), allowed a discovery and inspection by defendant of a statement made by one of its employees to plaintiff, holding that if a party is entitled to receive a statement given to its adversary, there was no reason why it could not obtain a statement given by one of its employees.

In Bloom v. New York City Transit Authority, 20 A.D.2d 687, 246 N.Y.S.2d 414, this Court permitted discovery and inspection of accident reports obtained prior to the institution of suit, and not made in preparation for trial, and of the reports of the accident prepared by the engineer and conductor of defendant shortly after the accident. (See also McGarry v. New York City Tr. Auth., 20 A.D.2d 683, 246 N.Y.S.2d 171.)

Discovery is not the sole method of obtaining disclosure. CPLR § 3102(a) also makes provision for depositions upon oral questions and upon written questions without the state; demands for addresses; discovery and inspection of documents or property; physical and mental examinations; and requests for admission. Under CPLR Rule 3111, the notice or subpoena may require the production of books, papers and other things in the possession, custody or control of the person to be examined to be marked as exhibits, and used on the examination.

Thus the method of obtaining disclosure by discovery and inspection under CPLR Rule 3120 is to be distinguished from the limited discovery under CPLR Rule 3111 in the course of taking a deposition. CPLR Rule 3120 permits the discovery of specified papers and documents, and its hallmark is a specific designation in the notice. CPLR Rule 3120(1) provides that after the commencement of an action any party may serve on any other party a notice 'to produce and permit the party seeking discovery * * * to inspect, copy, test or photograph any specifically designated documents or any things which are in the possession, custody or control of the party served, specified with reasonable particularity in the notice'. CPLR Rule 3120 is based on New Jersey rule 4:24-1, which is patterned after Federal Rule 34, except that it permits discovery on notice rather than upon an order (1st Preliminary Report, Advisory Comm. on Practice, N.Y.Leg.Doc.1957, No. 6[b], p. 152). To prevent the service of conventionalized "blunderbuss" notices, the rule requires 'specifically designated' documents "specified with reasonable particularity in the notice". (6th Preliminary Report, Advisory Comm. on Practice, N.Y.Leg.Doc.1962, No. 8, p. 321.) Thus, to help reduce fishing expeditions, the documents and other things to be examined must be specifically identified. (McKinney's Cons.Laws of N.Y., Book 7B, CPLR, rule 3120, Notes p. 258.)

In Public Administrator of New York County v. Rogers, 26 F.R.D. 118 (S.D.N.Y.1960),...