Marshall E. Livingston, J.
The respondent (RTC) in this condemnation action moves for a protective order against a notice to produce certain documents and records for use in this proceeding.
The notices of the petitioner (City) to produce for inspection and copying called for the following documents:
(1) The current employment contracts of William A. Lang, President and Charles F. Whitten, Vice-President, showing salary, conditions and terms of employment.
(2) The corporate stockbook and stock transfer ledger.
(3) The corporate tax returns for the last five (5) years.
(4) The labor relations file of events between 1962 and the present, containing correspondence, memorandums, contract negotiations showing all activity on the behalf of the corporation in relationship to the Union, which file, immediately before the condemnation, was in the possession and control of Charles F. Whitten, Vice-President.
(5) The corporate minutes of the Rochester Transit Corporation for the last ten (10) years. RTC contends, with one exception, on its motion for a protective order, pursuant to CPLR 3103, that the documents sought to be inspected and copied "are not material to the issues in this proceeding and are not the proper subject of discovery and inspection".
In its memorandum of law, RTC also argues that the corporate stock books, stock transfer ledger, corporate minutes and corporate tax returns are "items that are confidential in nature and subject to abuse if divulged".
With respect, however, to the corporate tax returns for the past five years, RTC has waived its prior objection and now consents to furnish these to the City condemnor. It also volunteers to produce the annual stockholders' reports for the past five years, the reports to the Public Service Commission, and the labor contract for 1967, together with the proposals submitted by the Union and RTC prior to negotiating the 1967 contract. The stockholders' and Public Service Commission reports were not included in the notices, and the 1967 labor contract and some background material are only a portion of the labor relations file demanded in the notice.
Chapter 250 of the Laws of 1968, effective May 14, 1968, authorized the City to condemn the RTC, subject to the provisions of section 5-a of the Condemnation Law. On May 22, 1968 this court made an order condemning RTC's real property, easements, certain improvements on city-owned land, personal property, including fixtures, vehicles, machinery, records, documents, all corporate books and records, franchises and rights belonging to RTC and vesting title thereto in the petitioner, City of Rochester, as of May 23, 1968.
A copy of the petition for condemnation and notice of presentation to the court has been given to the Public Service Commission, as required by section 5-a of the Condemnation Law, in conformance with the exception as to the time of the notice provided in chapter 250 of the Laws of 1968. The first Public Service Commission hearing has been scheduled, and at the conclusion of the hearings, this court will receive the report of the Public Service Commission, provided for in section 5-a of the Condemnation Law.
The notices under consideration here and the motion for a protective order have no relation to the Public Service Commission hearings on the prospective earnings and rate base and rate of return from which the estimate of earnings will be derived and which will be the subject of the Public Service Commission's report to this court and to the commissioners of appraisal, if then appointed. RTC takes the position that in New York, by reason of Matter of City of New York (Fifth Ave. Coach Lines) (18 N.Y.2d 212) and Matter of Port Auth. Trans-Hudson Corp. (20 N.Y.2d 457), the only yardstick for measuring "just compensation" in this type of case is the cost of reproduction, less depreciation, plus "going concern" value, depending on what the evidence shows. Therefore, says RTC, all of what the City demands is immaterial because it does not bear on items which would be relevant to value under such a yardstick.
Were I to decide this motion on such a basis, I would, in effect, be proscribing the proof bearing on "just compensation" in the condemnation ...