Ruff v. Golub Corp.

• Decision Date: 22 July 1985
• Citation: 492 N.Y.S.2d 692,128 Misc.2d 1047
• Parties: James RUFF, Plaintiff, v. GOLUB CORPORATION and Northeast Coca-Cola Bottling Co., Inc., Defendants. GOLUB CORPORATION, Third-party Plaintiff, v. The TITAN INDUSTRIAL CORPORATION, Third-Party Defendant.
• Court: New York Supreme Court

Page 692

492 N.Y.S.2d 692

128 Misc.2d 1047

James RUFF, Plaintiff, v. GOLUB CORPORATION and Northeast Coca-Cola Bottling Co., Inc., Defendants.

GOLUB CORPORATION, Third-party Plaintiff, v. The TITAN INDUSTRIAL CORPORATION, Third-Party Defendant.

Supreme Court, Special Term Albany County.

July 22, 1985.

Carter, Conboy, Bardwell, Case & Blackmore, Albany, for third party plaintiff, Golub.

Anthony J. DeGaetano, Albany, for plaintiff, James Ruff.

Donohue, Donohue & Sabo, P.C., Albany, for defendant, Northeast Coca-Cola Bottling Co., Inc.

JOHN G. CONNOR, Justice Presiding.

The issue presented herein is whether Northeast Coca-Cola Bottling Co., Inc. is entitled to disclosure of accident reports prepared by codefendant Golub Corporation relative to plaintiff's injuries at one of Golub's supermarkets. Golub refuses disclosure on the ground that its in-house claims department completed such a report only after it had been served with a summons and notice and thereafter investigated the matter. Golub asserts that any such report is material prepared exclusively for the purposes of litigation and immune from disclosure under CPLR 3101(d)(2).

Pursuant to CPLR 3101(g), any accident report prepared in the regular course of business is subject to disclosure, with certain exceptions not applicable here. In Pataki v. Kiseda, 80 A.D.2d 100, 437 N.Y.S.2d 692, lv. dismissed 54 N.Y.2d 831), the Appellate Division, Second Department addressed the problem when CPLR 3101(g) comes into apparent conflict with CPLR 3101(d)(2) and determined that CPLR 3101(g) prevails. The Pataki Court read CPLR 3101(g) to require the disclosure of any accident report prepared in the regular course of business even though the sole business purpose was to prepare for litigation (id. at 104-105, 437 N.Y.S.2d 692).

The Appellate Division, Third Department seemingly cited Pataki with approval in Vandenburgh v. Columbia Mem. Hosp., 91 A.D.2d 710, 457 N.Y.S.2d 591), requiring disclosure by the defendant of a report which was found to be "multi-motivated" by regular business practice as well as the preparation for litigation (id. at 711, 457 N.Y.S.2d 591). Vandenburgh involved personal injuries sustained when the plaintiff fell at the defendant's hospital. The plaintiff sought reports made by the defendant relative to her case, which the defendant refused upon the ground that such reports were prepared exclusively for litigation and therefore immune under CPLR 3101(d)(2). While citing Pataki v. Kiseda (supra), the Third Department did not clearly state that it was finding defendant's reports subject to disclosure as accident reports prepared in the regular course of business pursuant to CPLR 3101(g). Rather, the Court apparently held that the defendants failed to meet the burden of demonstrating that such reports were prepared exclusively for litigation and, therefore, the defendant was not entitled to immunity from disclosure of the reports under 3101(d)(2).

Later cases decided by the Third Department evidence that the Vandenburgh decision focused on the CPLR 3101(d)(2) requirement that "be immune from discovery, must demonstrate that the material sought was prepared exclusively for litigation "(Carden v. Allstate Ins. Co., 105 A.D.2d 1048, 1049, 483 N.Y.2d 486, citing Vandenburgh v. Columbia Mem. Hosp., 91 A.D.2d 710, 711, 457 N.Y.S.2d 591 supra, see also Oppedisano v. New York Mut. Underwriters, App.Div., 488 N.Y.S.2d 512). Both Carden and Oppedisano involved insurer's reports of property loss due to fire rather than personal injury accident reports.

In a recent case relying on Pataki, the Appellate Division First Department held that an accident investigation report prepared as a "confidential report" solely at the behest of the defendant's attorney for use in the anticipation of litigation was not subject to CPLR 3101(g) disclosure and immune under CPLR 3101(d)(2) (Matter of Goldstein v. New York Daily News, 106 A.D.2d 323, 324-325, 482 N.Y.S.2d 768). Additionally, the report in Goldstein was forwarded directly to the defendant's attorney upon completion, and other accident reports prepared in the regular course of business by the defendant's safety and loss prevention department were provided without objection (id.)

The Pataki decision, however, has been questioned upon a review of the legislative history to CPLR 3101(g) which indicates that the amendment merely codified existing law. Existing law at the time was that any accident report would be subject to disclosure unless it could be demonstrated that the report was prepared exclusively for litigation (see Harris v. Processed Wood 89 A.D.2d 220, 455 N.Y.S.2d 411). In Harris, the Appellate Division, Fourth Department declined to follow Pataki finding that a report made by defendant's employee to its insurer was immune from disclosure as it would have been under the law prior to the CPLR 3101(g). The Court found no indication of any purpose other than the defense and settlement of the action (id. at 222-223, 455 N.Y.S.2d 411).

The Second Department which authored Pataki later held that it also drew such a distinction between in-house reports made by a business as in Pataki and reports made to an insurer. "The latter constitute at the minimum, materials prepared for litigation which are conditionally exempt from disclosure under CPLR 3101 (subd. )" (Williams v. Metropolitan Transp. Auth., 99 A.D.2d 530, 531, 471 N.Y.S.2d 310; see also Viruet v. City of New York, 97 A.D.2d 435, 467 N.Y.S.2d 285 Schneider v. Schneider, 94 A.D.2d 700, 462 N.Y.S.2d 52 Hill v. Misericordia Hosp. Med. Center, 91 A.D.2d 915, 457 N.Y.S.2d 541 Vernet v. Gilbert, 90 A.D.2d 846, 456 N.Y.S.2d 93 ).

It is unclear whether the Third Department would adopt the position of the Second Department in Pataki v. Kiseda, 80 A.D.2d 100, 437 N.Y.S.2d 692, lv. dismissed 54 N.Y.2d 831, supra. As dilineated by later cases, Pataki gives immunity only to accident reports prepared for an insurer. Any other accident report, even if prepared in the course of business solely for litigation is not immune under CPLR 3101(g) (see Matos v. Akram & Jamal Meat Corp., 99 A.D.2d 527, 471 N.Y.S.2d 309.

The First Department apparently adopted this position in Matter of Goldstein v. New York Daily News, 106 A.D.2d 323, 482 N.Y.S.2d 768, supra, but found that while the report in question was prepared exclusively for litigation by ...