Schreiner v. Long Island Lighting Co.

• Decision Date: 03 November 1986
• Citation: 507 N.Y.S.2d 723,124 A.D.2d 578
• Parties: Ann C. SCHREINER, etc., et al., Plaintiffs-Respondents, v. LONG ISLAND LIGHTING COMPANY, Appellant, Dogwood Hills, Inc., Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 723

507 N.Y.S.2d 723

124 A.D.2d 578

Ann C. SCHREINER, etc., et al., Plaintiffs-Respondents, v. LONG ISLAND LIGHTING COMPANY, Appellant, Dogwood Hills Inc., Defendant-Respondent.

Supreme Court, Appellate Division Second Department.

Nov. 3, 1986.

Montfort, Healy, McGuire & Salley, Mineola (E. Richard Rimmels, Jr., and James M. Murphy, of counsel), for appellant.

McCoy, Agoglia, Beckett & Fassberg, P.C., Mineola (Kathleen M. Beckett, of counsel), for plaintiffs-respondents.

Lilly Sullivan Purcell Barkan & Junge, P.C., New York City (Floyd G. Cottrell, of counsel), for defendant-respondent.

Before MANGANO, J.P., and BRACKEN, BROWN and EIBER, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for wrongful death and conscious pain and suffering, the defendant Long Island Lighting Company (hereinafter LILCO) appeals from (1) an order of the Supreme Court, Nassau County (Christ, J.), dated May 28, 1985, which denied, in part, its motion for a protective order vacating the plaintiffs' notice for discovery and inspection, and (2) an order of the same court, dated September 11, 1985, which denied its motion for leave to renew and/or reargue the prior order.

ORDERED that the order dated May 28, 1985, is affirmed; and it is further,

ORDERED that the appeal from the order dated September 11, 1985, insofar as it denied LILCO's motion for reargument, is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated September 11, 1985, insofar as it denied LILCO's motion for renewal of the prior order, is affirmed, and it is further,

ORDERED that the respondents, appearing separately and filing separate briefs, are awarded one bill of costs.

We find, as did Special Term, that the information encompassed in Items 11 and 12 of the plaintiffs' notice for discovery and inspection is subject to disclosure pursuant to CPLR 3101(g). Although LILCO maintains that the accident reports and other material specified in the plaintiffs' demand are not subject to disclosure because they were prepared by its claims department exclusively in anticipation of litigation (see, CPLR 3101[d] ), this court, in the seminal case of Pataki v. Kiseda, 80 A.D.2d 100, 104-105, 437 N.Y.S.2d 692, lv. dismissed 54 N.Y.2d 831, 443 N.Y.S.2d 1029, 427 N.E.2d 514), recognized that "any written accident report, prepared in the regular course of business operations or practices, not for use in a criminal investigation or prosec...