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MARY PACER v. CLARENCE A. HACKETT (09/27/68)

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT


September 27, 1968

MARY PACER, AS EXECUTRIX OF WALTER PACER, DECEASED, APPELLANT,
v.
CLARENCE A. HACKETT, INC., ET AL., RESPONDENTS, AND A. E. ANDERSON CONSTRUCTION CORPORATION ET AL., APPELLANTS

Appeals from order of Erie Special Term granting in part motion for discovery and inspection.

Williams, J. P., Goldman, Marsh, Witmer and Henry, JJ.

Memorandum: Special Term properly denied the relief sought under CPLR 3120 (subd. [b]) but erred in basing its denial upon the ground that "Bethlehem Steel Corporation is not a party to this action". A person not a party may be directed to do whatever a party may be directed to do but "The motion for such order shall be on notice to all adverse parties". It is conceded that defendants-respondents' motion was not made against the plaintiff and must, therefore, be denied for failure to give the requisite notice. The order further required the nonparty appellant "to produce the entire investigation file in its possession or control" pursuant to CPLR 3101. This blanket direction, without specifically designating the documents to be inspected, is clearly too broad and all-embracing. It made no exception for privileged matter, attorney's work product or material prepared for litigation (CPLR 3101, subd. [a], par. [4]; subds. [b] [c] [d]). Notwithstanding the acknowledged liberal disclosure provisions of the CPLR, this shot-gun approach finds no support in the many reported decisions dealing with this subject (Reese v. Long Is. R. R. Co., 24 A.D.2d 581; Kandel v. Tocher, 22 A.D.2d 513; Finegold v. Lewis, 22 A.D.2d 447; Rios v. Donovan, 21 A.D.2d 409).

Disposition

Order unanimously reversed, with costs, and motion denied.

19680927

© 1998 VersusLaw Inc.



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