Zarillo v. State
Decision Date | 21 May 1956 |
Citation | 2 Misc.2d 148,152 N.Y.S.2d 17 |
Parties | George ZARILLO, individually and as Guardian ad Litem for Margaret Zarrillo, an infant, Plaintiffs, v. STATE of New York, Defendant. |
Court | New York Court of Claims |
Irving A. Scheinberg, New York City, for claimant.
Jacob K. Javitts, Atty. Gen., for the State of New York, Robert Schwartz, Asst. Atty. Gen., of counsel. HELLER, Judge.
This is a motion by the claimant for examination before trial. The motion papers show that the claim arises from an injury suffered by the infant claimant, four and one-half years of age, when struck by a bicycle while at the Valley Stream State Park.
The State is willing to submit to an examination before trial by employees having knowledge of the facts and circumstances giving rise to the claim and as to the operation, maintenance and control of the Valley Stream State Park. The State has objected however, that such examination should not be permitted until the claimant has served a verified Bill of Particulars in accordance with a demand served on the claimant on November 5, 1955. There is no basis for conditioning the granting of an examination before trial as to the matters which are obviously relevant and material under the circumstances present here. The case of Zecchini v. Mayer, 195 App.Div. 423, 186 N.Y.S. 459, set forth by the State in its affidavit, presented a substantially different situation and the requirement for a Bill of Particulars was pursuant to an Order of the Court made at the same time that an Order for Examination had been vacated. Here the Court is without knowledge as to what particulars have been demanded and there is no showing that the service of such a Bill of Particulars would in any way effect the question of the relevancy and materiality of the examination sought by the claimant.
The items listed in the Notice of Motion for Examination however, exceed in a number of instances, the proper limits for such an examination. The State apparently has no objection to an examination relating to the operation, maintenance and control of the Valley Stream State Park. Examination is permitted as to Items A.1, A.2, A.3 and A.4 as set forth in the Notice of Motion.
The State also is willing to submit to an examination concerning the facts and circumstances giving rise to the claim herein. Under these circumstances Item B as listed in the Notice of Motion is a proper matter for examination.
In Item C however, the claimant seeks an examination 'relating to the acts, movements and conduct' of the infant-claimant at the time of the accident and shortly prior and subsequent thereto. Rule 122 of the Rules of Civil Practice provides that where the party seeking the testimony shows he is without knowledge of the proper person to be examined, the Court may order the adverse party to designate and produce an officer, agent or employee having such knowledge. The affidavit of the Assistant Attorney General of the State of New York shows that at this time the State has no knowledge or...
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