Schuster v. City of New York

• Decision Date: 09 May 1960
• Citation: 203 N.Y.S.2d 278,25 Misc.2d 916
• Parties: Max SCHUSTER, as Administrator of the goods, chattels and credits of Arnold L. Schuster, deceased, v. CITY OF NEW YORK.
• Court: New York Supreme Court

Page 278

203 N.Y.S.2d 278

25 Misc.2d 916

Max SCHUSTER, as Administrator of the goods, chattels and credits of Arnold L. Schuster, deceased, v. CITY OF NEW YORK.

Supreme Court, Special Term, Kings County, Part I.

May 9, 1960.

Harry H. Lipsig, New York City, for plaintiff.

Charles H. Tenney, Corp. Counsel, New York City, for defendant.

WALTER R. HART, Justice.

Plaintiff moves for a discovery and inspection of certain specified records, reports, documents, etc. of the Police Department concerning generally the alleged police protection afforded Arnold L. Schuster and his family, and his subsequent murder.

On motions previously made by plaintiff in this action, for an examination of the defendant The City of New York, before trial, by members and officers of the Police Department, and for a discovery and inspection of records of the Police Department, Mr. Justice Brenner of this Court granted an examination of such members or officers of the Police Department having knowledge of the matters as to which the examination was allowed, with a direction to produce upon such examination all pertinent books, records, etc. to be used to refresh the recollection of the witness upon the examination; the motion for discovery and inspection was denied without prejudice to a subsequent application therefor upon a showing of the necessity thereof. Schuster v. City of New York, 20 Misc.2d 516, 519, 191 N.Y.S.2d 884.

The rules with respect to the granting of discovery and inspection are well established. The remedy of discovery and inspection may be invoked only as to books, documents or other papers or articles of property which relate to the merits of the action (Civil Practice Act section 324; Paliotto v. Hartman, 2 A.D.2d 866, 156 N.Y.S.2d 220). They must be evidence themselves, and are not subject to inspection merely because they will suggest or supply a clue whereby evidence can be gathered (People ex rel. Lemon v. Supreme Court of State of New York, 245 N.Y. 24, 29, 156 N.E. 84, 85, 52 A.L.R. 200; Falco v. New York, New Haven & Hartford R. R. Co., 161 App.Div. 735, 146 N.Y.S. 1024). It must appear that the examination of the particular record, document or article is relevant and necessary (Hay v. Republic Trading Co., 184 App.Div. 537, 172 N.Y.S. 573) and will be admissible as evidence on the trial (Milberg v. Lehrich, 2 A.D.2d 860, 156 N.Y.S.2d 72).

Applying these rules to the instant application, the conclusion is reached that the items designated Nos. 1, 3, 5, 7 and 8 clearly fail to meet the tests established by the foregoing rules. Those items are subject to the objection that they relate to confidential and secret matters, the disclosure of which may be prejudicial to the public interest and hence are normally privileged from disclosure (Application of Langert v. Tenney, 5 A.D.2d 586, 173 N.Y.S.2d 665, appeal to Court of Appeals dismissed 5 N.Y.2d 875, 182 N.Y.S.2d 25; Egan v. Board of Water Supply of City of New York, 205 N.Y. 147, 157, 98 N.E. 467, 470, 41 L.R.A.,N.S., 280). Specifically, as respects the production of the medical examiner's report, cf. New York City Charter, section 879; see Hughes v. Kings County Court, 181 Misc. 668, 41 N.Y.S.2d 843; see also People v. English, 175 Misc. 751, 24 N.Y.S.2d 207 and English v. Bohan, 175 Misc. 930, 26 N.Y.S.2d 23. Respecting ballistics reports see Brown v. Commissioner Adams of New York City Police Department, Sup., 203 N.Y.S.2d 277, Gavegan, J.

While the privilege may be qualified, depending on the circumstances of a particular case, so as to permit a discovery and inspection, it is still necessary that the items sought to be examined are relevant and material. As respects the foregoing items in the instant case, it does not satisfactorily appear that an examination with respect to said items is material and necessary or that an inspection thereof would be relevant to the issues raised by the pleadings in this action.

A discovery and inspection is granted as to item 2 insofar as any of the letters, etc. specified therein are presently in the possession, and under the control, of defendant. Item 4 likewise is granted, no objection being made with respect thereto.

There remain for disposition on this motion items 6 and 9. The records, documents and reports referred to in said items should normally not be made available for discovery and inspection as they may very likely contain matter which, upon general grounds of public policy, is privileged from disclosure. See Application of Langert v. Tenney, supra; see also other cases cited in the opinion of Mr. Justice Brenner...