Vogl v. Joyce Kilmer Realty Corp.

• Decision Date: 06 April 1983
• Citation: 461 N.Y.S.2d 214,118 Misc.2d 611
• Parties: Alfred VOGL, individually and as Administrator of the Estate of Ronald Vogl, deceased, Plaintiff, v. JOYCE KILMER REALTY CORPORATION and 35-79 169th Street Club, Inc., Defendants.
• Court: New York Supreme Court

Page 214

461 N.Y.S.2d 214

118 Misc.2d 611

Alfred VOGL, individually and as Administrator of the Estate of Ronald Vogl, deceased, Plaintiff, v. JOYCE KILMER REALTY CORPORATION and 35-79 169th Street Club Inc., Defendants.

Supreme Court, Special Term Nassau County, Part I.

April 6, 1983.

Bases, Russo, Lawrence, Ciovacco, Walsh & Feder, P.C., Garden City, for plaintiff.

Deegan, Scibilia & Reardon, Mineola, for defendant, Joyce Kilmer Realty Corp.

Jessel Rothman, P.C., Mineola, for defendant, 35-79 169th Street Club, Inc.

MEMORANDUM

ELI WAGER, Justice.

The issue raised on this motion for a protective order is whether an accident report given by an employee of one defendant to a co-defendant's insurer is subject to discovery pursuant to CPLR 3101, subdivision (g) (L.1980, c. 283, § 1, effective September 1, 1980). Subdivision (g) provides as follows:

"(g) Accident reports. Except as is otherwise provided by law, in addition to any other matter which may be subject to disclosure, there shall be full disclosure of any written report of an accident prepared in the regular course of business operations or practices of any person, firm, corporation, association or other public or private entity, unless prepared by a police or peace officer for a criminal investigation or prosecution and disclosure would interfere with a criminal investigation or prosecution."

The Appellate Division, Second Department in Pataki v. Kiseda, 80 A.D.2d 100, 437 N.Y.S.2d 692, mot. for lv. to app. dism. 54 N.Y.2d 831, resolved an "inherent anomaly" between CPLR 3101, subdivision (d), paragraph 2 (providing protection for material prepared for litigation) and subdivision (g), holding that when the two provisions come in conflict subdivision (g) is to be controlling and that thus "[a]ll accident reports, whether or not prepared exclusively for litigation, are discoverable," that "subdivision (g) encompasses all accident reports regardless of purpose, with one narrow exception dealing with criminal investigations or prosecutions," and that "the paramount intention of the Legislature was to render all accident reports not falling within that one exception discoverable." The court concluded that the opening words of subdivision (g) ("Except as is otherwise provided by law * * * ") "refer to some other provision which the Legislature may or may not have had in mind when enacting the statute, but which is not to be found within the statutes dealing with discovery." The issue in Pataki was an accident report prepared by the defendant bus driver employed by the defendant bus company and forwarded to their attorney.

Nevertheless--and in spite of Pataki's broad construction of subdivision (g)--the Appellate Division, Second Department subsequently ruled that an accident report given by a party to his liability insurer is conditionally exempt from disclosure under subdivision (d) of CPLR 3101 (see Vernet v. Gilbert, 90 A.D.2d 846, 456 N.Y.S.2d 93; Weiser v. Krakowski, 90 A.D.2d 847, 456 N.Y.S.2d 94). "There is," the court ruled in the Vernet case, "a sharp distinction to be recognized between accident reports which result from the regular internal operations of any enterprise, authority or business, and those which are made or produced in connection with the report of an accident to a liability insurer. There is no indication that the Legislature, in enacting subdivision (g) of CPLR 3101, intended to obviate the longstanding decisional rule applicable in the latter instance."

In the interim between Pataki and Vernet the two lower courts (see Ellis v. County of Broome, 112 Misc.2d 19, 445 N.Y.S.2d 957 and Masters v. Hassenpflug, 110 Misc.2d 998, 443 N.Y.S.2d 210) and the Appellate Division, Fourth Department (in Harris v. Processed Wood, Inc., 89 A.D.2d 220, 455 N.Y.S.2d 411) refused to follow Pataki, citing the legislative memorandum of the bill's sponsor who stated that the "...