Stein v. Trump Village Section No. 4, Inc.

• Decision Date: 22 March 1983
• Citation: Stein v. Trump Village Section No. 4, Inc., 460 N.Y.S.2d 475, 118 Misc.2d 344 (N.Y. Sup. Ct. 1983)
• Parties: Michelle STEIN, Plaintiff, v. TRUMP VILLAGE SECTION NO. 4, INC., Defendant.
• Court: New York Supreme Court

Page 475

460 N.Y.S.2d 475

118 Misc.2d 344

Michelle STEIN, Plaintiff, v.TRUMP VILLAGE SECTION NO. 4, INC., Defendant.

Supreme Court, Special Term New York County, Part I.

March 22, 1983.

Kenneth Horwitz, New York City, for plaintiff.

Harold M. Foster, New York City, for defendant.

ARTHUR S. HIRSCH, Justice.

Defendant Trump VillageSection No. 4, Inc. (Trump) moves for an order to vacate items in plaintiff's discovery and inspection notice requiring Trump to furnish accident reports.

An affidavit of the President of Trump Village is submitted to show that the only reports made of the incident were obtained solely for litigation purposes, after defendant had received the summons and complaint.The inference is clear that Trump does not make reports of accidents on its premises for purposes other than litigation and therefore, the defendant contends, the reports are not amenable for discovery, as they are entitled to the immunity proffered by CPLR 3101(d)(2) of the disclosure article.

The legislative intent of the liberalization of all discovery proceedings has been implemented by the courts(Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403, 288 N.Y.S.2d 449, 235 N.E.2d 430;Rios v. Donovan, 21 A.D.2d 409, 250 N.Y.S.2d 818).On the question of disclosure of accident reports, the courts have previously interpreted the statute to permit discovery if the reports used for litigation were also intended for intra-office use, such as management knowledge and control, or for disciplinary or personnel records (seeMold 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).If the accident reports were prepared exclusively for litigation, however, they warranted immunity (seeBraun v. Great Atlantic & 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).

In 1980, subdivision (g), under the heading of "Accident Reports", was added to Section 3101.This new section permits discovery of an accident report prepared in the ordinary course of business, with only one exception, i.e., when prepared by the police for criminal investigation.The courts were faced with the dilemma of how to reconcile CPLR 3101(d)(2), protecting from disclosure any writing prepared for litigation, with the new subdivision.The dilemma was faced head-on by the Appellate Division, 2nd Department, in Pataki v. Kiseda, 80 A.D.2d 100, 437 N.Y.S.2d 692.In a unanimous decision, graphically detailing case law of accident report discovery prior to amendment (g), the Appellate Court found that "when subdivision (d)(par 2) and subdivision (g) come in direct conflict, subdivision (g) is to be controlling."They held "that any written accident report, prepared in the regular course of business operations or practices, not for use in a criminal investigation or prosecution, is subject to full disclosure, notwithstanding that it was prepared exclusively for use in litigation"( Pataki v. Kiseda, Id. at 103-105, 437 N.Y.S.2d 692).

Pataki 's logic and findings have since been followed by the courts(Mogollon v. South African Marine Corp., 88 A.D.2d 586, 449 N.Y.S.2d 791(1982);Louis v. All City Elevator Inc., 115 Misc.2d 1010, 454 N.Y.S.2d 932).In the latter case, Mr. Justice Spodek described the legislative history of amendment (g).In an earlier version of the amendment, accident reports resulting from the regular operation of a business were made discoverable "unless prepared exclusively for litigation".This was the codification of existing case law and was passed by the legislature and submitted to the Governor for signature.The Governor vetoed the amendment, objecting to the section's inhibiting effect on the current judicial trend towards a more expanded and more liberal view of discovery.The bill was redrafted and resubmitted (seeNew York State Assembly Memorand in Support of Legislation 9303-A ), omitting the qualification "unless prepared exclusively for litigation", thus conceding to and obviating the Governor's objections.

Apparently, the category of accident reports no longer was to be protected by Section 3101(d)(2), even if prepared exclusively for litigation (Pataki v. Kiseda, supra).In the Pataki case, a wrongful death action, a woman was killed when her automobile collided with a bus, driven by defendant bus driver, owned by defendant bus company.The company admitted that a report of the...