Zayas v. Morales
| Decision Date | 04 November 1974 |
| Citation | 360 N.Y.S.2d 279,45 A.D.2d 610 |
| Parties | Angel ZAYAS, as Administrator, etc., et al., Respondents, v. Gregorio MORALES et al., Defendants, and L. K. Comstock & Co., Inc., Appellant. |
| Court | New York Supreme Court — Appellate Division |
Konheim, Halpern & Bleiwas, New York City (Victor Bleiwas, New York City, of counsel), for appellant.
Talisman & Rudin, New York City, for plaintiff-respondents.
Flood, Conway, Walsh, Stahl & Farrell, New York City, for defendant-respondent Welsbach Corp.
Joseph Messina, New York City, for defendant Morales.
Norman Redlich, New York City, for defendant City of New York.
Before LATHAM, Acting P.J., and SHAPIRO, COHALAN, BRENNAN and BENJAMIN, JJ.
In this case of a two-car intersection collision, which occurred on October 7, 1971, the plaintiffs sue defendant Morales as the driver of the offending automobile and the other defendants, the City of New York, the Welsbach Corp. and L. K. Comstock & Co., Inc. (Comstock) as contributing tort-feasors by reason of the nonfunctioning of a traffic light at the place where the accident occurred. Comstock applied for an order pursuant to CPLR 3124 requiring the plaintiffs and Comstock's codefendants to disclose the names and addresses of the eyewitnesses to the occurrence as well as the names and addresses of those persons they proposed to call as notice witnesses to the nonoperating condition of the traffic light. The Special Term granted the application so far as the names of the eyewitnesses to the occurrence were concerned, but denied it as regards the notice witnesses. Comstock, feeling aggrieved by the denial, has appealed to this court. We agree with Comstock that a disclosure of the names and addresses of the witnesses on the question of notice should have been directed.
Comstock alleged that it first learned of the accident on December 23, 1971 and that it had no notice of the defective condition of the traffic lights until October 13, 1971, six days after the accident.
In their further bill of particulars, the plaintiffs allege:
'that L K Comstock & Co., Inc., had constructive notice of the broken and defective lights inasmuch as these traffic lights were broken and defective for approximately three weeks prior to the happening of this accident.'
In denying Comstock's right to be given the names and addresses of the notice witnesses, the Special Term said that that 'situation does not come within the reasoning of Zellman v. Metropolitan Transportation Authority, 40 A.D.2d 248 (339 N.Y.S.2d 255)'.
In that case, we said (p. 251, 339 N.Y.S.2d 258):
'We have reviewed our prior holdings and have now concluded that the names of eyewitnesses to the occurrence, even if obtained by investigation made after the occurrence, are discoverable if they are material and necessary to the prosecution or defense of the action. Prior holdings to the effect that the names of eyewitnesses may be regarded as things created by a party in preparation for litigation resulted from a strained construction of the statute. They represent an understandable effort to avoid allowing one party to benefit from the preparatory efforts of his opponent. Nonetheless, such constructions do violence to the stated policy of CPLR 3101 that there shall be full disclosure of all material and necessary evidence and serve to perpetuate the
It is true that Zellman dealt with 'the names of eyewitnesses to the occurrence.' However, to blindly limit its application to 'occurrence' witnesses is to disregard its rationale and purpose to effect 'full disclosure of all material and necessary evidence'. We perceive no difference in theory between discoverability of the identity of an eyewitness...
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...at 251, 339 N.Y.S.2d 255). This court's reasoning in Zellman was extended to the identification of notice witnesses in Zayas v. Morales, 45 A.D.2d 610, 360 N.Y.S.2d 279; see also, Hoffman v. Ro-San Manor, 73 A.D.2d 207, 425 N.Y.S.2d The discoverability of surveillance evidence was addressed......
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