Varner v. Winfield
| Decision Date | 29 December 1969 |
| Citation | 33 A.D.2d 807,307 N.Y.S.2d 3 |
| Parties | Joseph VARNER, Respondent, v. Charles WINFIELD, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Charles V. McDonald, Freeport, for plaintiff-respondent.
Patrick F. Adams, Mineola, for defendant-appellant; E. Richard Rimmels, Jr., Garden City, of counsel.
Before BRENNAN, Acting P.J., and HOPKINS, MARTUSCELLO, MUNDER and BENJAMIN, JJ.
MEMORANDUM BY THE COURT.
In a negligence action to recover damages for personal injuries, defendant appeals from an order of the Supreme Court, Nassau County, dated June 18, 1968, which denied his motion to compel plaintiff to disclose the names and addresses of witnesses to the automobile accident upon which the action is based.
Order affirmed, with $10 costs and disbursements.
Plaintiff was allegedly injured when he was struck by defendant's automobile. Plaintiff was rendered unconscious while defendant and his passenger were apparently uninjured. At the examination before trial of plaintiff, it developed that his attorney had investigated the accident and obtained the names of witnesses. Plaintiff had been informed as to these names by his attorney, but when asked if there were any witnesses he complied with his attorney's instructions not to answer. Counsel for plaintiff refused to supply the names unless it were held that defendant was entitled to them. Defendant then moved to compel plaintiff to disclose and deposed that he was unable to obtain the names of witnesses despite his investigation and that the names were needed in order to prepare a defense.
Recently we held that a party should be required to disclose the identity of witnesses to an accident if it appeared that such matter was not privileged under subdivisions (c) or (d) of CPLR 3101 (Peretz v Blekicki, 31 A.D.2d 934, 298 N.Y.S.2d 805). That holding was based on the liberal approach to disclosure adopted by the CPLR and recently reiterated in Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403, 288 N.Y.S.2d 449, 235 N.E.2d 430. We are now faced with the issue of whether the identity of witnesses obtained through the investigation of an attorney of one of the parties, as opposed to the identity of a witness obtained at the scene by a party, is privileged.
Several recent cases indicate that the identity of witnesses obtained by investigation after the accident is material prepared for litigation and thus conditionally immune under subdivision (d) of CPLR 3101 (). In Hartley, the court held (58 Misc.2d, p. 624, 296 N.Y.S.2d p. 399):
'where a party obtains knowledge of the identity of witnesses through an investigation after the happening of the occurrence as distinguished from personal observation at the scene, such knowledge constitutes material prepared for litigation which is protected by CPLR 3101(d).'
We are in agreement with that rule. The knowledge gained from an investigation concerning a witness' relationship as an observer of an incident and his identity can be considered as being 'created' in preparation for litigation just as a statement taken from a witness is given such classification (Hartley v. Ring, Supra; contra, Supplementary Practice Commentary (1968) on CPLR 3101 (in McKinney's Cons.Laws Book 7B (Cumulative Annual Pocket Part))).
Since the names of the witnesses at bar are material prepared for litigation, they are immune 'unless the court finds that the material can no longer be duplicated because of a change in conditions and that withholding it will result in injustice or undue hardship' (CPLR 3101, subd. (d)). We are of the opinion that defendant has failed to establish that he can no longer duplicate the list of names because of a change in conditions and that withholding it will result in injustice or undue hardship.
MUNDER, J., dissents and votes to reverse the order and grant the motion, with the following memorandum, in which BENJAMIN, J., concurs:
I cannot subscribe to the majority view that an eye witness to an accident can be shielded from discovery simply because his identity was gained through the investigation of plaintiff's attorney. What is rendered conditionally immune under CPLR 3101, subdivision (d), is '1 any opinion of an expert prepared for litigation; and 2. any Writing or Anything created by or for a party or his agent in preparation for litigation' (emphasis supplied). A witness is neither a 'writing' nor 'anything created' for litigation. Here, defendant claims that a diligent investigation by his attorney...
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