Totoritus v. Stefan
| Decision Date | 01 July 1958 |
| Citation | 175 N.Y.S.2d 802,6 A.D.2d 123 |
| Parties | Joseph TOTORITUS, Plaintiff-Respondent, v. Peter STEFAN, Defendant-Appellant, and Anna Stefan, Defendant. |
| Court | New York Supreme Court — Appellate Division |
Thomas Rattigan, New York City, of counsel (Garvey & Conway, New York City, attys.), for defendant-appellant.
Louis J. Jasne, New York City, for plaintiff-respondent.
Before BOTEIN, P. J., and BREITEL, RABIN, FRANK and McNALLY, JJ.
Defendant in a personal injury negligence action appeals from an order on plaintiff's motion requiring, among other things, that defendant furnish copies of a statement made by plaintiff to defendant's investigator.
The statement was obtained from plaintiff before the action was commenced and before plaintiff was represented by counsel, and in the absence of counsel or legal advice. He was not given a copy of the statement he signed. Under the circumstances, copies of the statement should be made available to plaintiff.
While it is recognized that such discovery affords a party an opportunity to accommodate his testimony to the prior statement (assuming that the statement, as recorded, is an accurate one), it also provides an opportunity to the party to correct any inaccuracies or distortions that may have occurred in the recording of the statement. No generalization is safe which is based on any premise which assumes the integrity, or lack of it, either in the giving of the prior statement or in the recording thereof. See, e. g., La Madia v. Miledna Realty Corp., 182 Misc. 690, 49 N.Y.S.2d 650, and cf. Destin v. Bernhard Mayer Estate, Inc., Sup., 123 N.Y.S.2d 271.
For these reasons this Court favors the rule adopted in the Third Department in Wilhelm v. Abel, 1 A.D.2d 55, 147 N.Y.S.2d 475. Acceptance of that rule in this Department was presaged in Urbina v. McLain, 4 A.D.2d 589, 168 N.Y.S.2d 175, a recent decision which denied discovery of a witness' statement, but in passing noted, by contrast, that recent cases have adopted the rule permitting inspection of a party's own statement to the opponent's investigator. It was there also pointed out that since a statement of a party may constitute an admission which could be received in evidence, it is a proper item for inspection. (For case at the appellate level and at Special Term illustrating the positive movement toward inspection of statements obtained from the opposing party, see Tripp, A Guide to Motion Practice, Rev. ed., p. 215.)
This...
To continue reading
Request your trial
-
Kane v. Her-Pet Refrigeration, Inc., HER-PET
...examples that follow illustrate the application of these rules to advance the purpose of the disclosure article. In Totoritus v. Stefan, 6 A.D.2d 123, 175 N.Y.S.2d 802, a case in which the plaintiff sought a copy of his own statement made to the defendant's investigator, the defense resiste......
-
Palmer v. Liberty Mut. Ins. Co.
...of the cause of action are subject to discovery and inspection. (Wilhelm v. Abel, 1 A.D.2d 55, 147 N.Y.S.2d 475; Totoritus v. Stefan, 6 A.D.2d 123, 175 N.Y.S.2d 802; Mead v. New York Central Railroad Company, 9 A.D.2d 861, 194 N.Y.S.2d 459; Stella v. Eastman Kodak Co., 12 A.D.2d 890, 211 N.......
-
Cataldo v. Monroe County
...to a plaintiff of statements made by him to defendant's insurer (Wilhelm v. Abel, 1 A.D.2d 55, 147 N.Y.S.2d 475; Totoritus v. Stefan, 6 A.D.2d 123, 175 N.Y.S.2d 802; Levey v. Hemme, 7 A.D.2d 646, 180 N.Y.S.2d 228), inspection of a written statement given to defendant's carrier by a witness ......
-
Donovan v. Albano Trucking Corp.
...Division (7 A.D.2d 991, 184 N.Y.S.2d 581), citing the case of Totoritus v. Stefan, 10 Misc.2d 881, 173 N.Y.S.2d 411, affirmed 6 A.D.2d 123, 175 N.Y.S.2d 802. In a decision appearing in the New York Law Journal of March 3, 1959 (the same day when the Baum decision by the Appellate Division a......