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SUPREME COURT OF NEW YORK, SPECIAL TERM, QUEENS COUNTY 1969.NY.41060 <>; 303 N.Y.S.2d 991; 60 Misc. 2d 634 April 10, 1969 JAMES J. QUIRINO, PLAINTIFF,v.NEW YORK CITY TRANSIT AUTHORITY, DEFENDANT Lechtman & Shandell for plaintiff. Sidney Brandes for defendant. J. Irwin Shapiro, J. Author: Shapiro

J. Irwin Shapiro, J.

Author: Shapiro

 At issue in this motion for a protective order is the applicability and effect, if any, of Allen v. Crowell-Collier Pub. Co. (21 N.Y.2d 403) upon discovery and inspection pursuant to CPLR 3120 (subd. [a]) in general and, in particular, that of accident reports made by an employee to his employer.

This is an action to recover damages for personal injuries allegedly sustained by the plaintiff on June 28, 1964, as a result of his falling from the platform to the tracks at one of the defendant's railroad stations and then being struck by a train. The plaintiff has served a notice for discovery and inspection of

(1) all manuals or regulations relating to the operation of defendant's trains by its motormen and

(2) all accident reports filed herein by Clemente Smith, Jr., (the motorman of the train), or Bertrand Racher (the station agent on duty at the station) relating to an accident which occurred on June 28, 1964 to James J. Quirino at the Broadway station of the Astoria line.

The defendant moves for a protective order vacating the plaintiff's notice. In its attorney's affidavit the defendant offers, with respect to the first paragraph of the notice, to permit "plaintiff to inspect its manuals or Rules and Regulations pertaining to operation of trains and to select the specific ones relevant to the instant accident. However, defendant respectfully requests that this be done at Special Term, Part II of this Court so that a Justice may be available for prompt rulings on any objections made by either party at the time of such inspection". The plaintiff consents to this procedure. Accordingly, the first paragraph of the notice for discovery and inspection is modified to comply with the aforesaid offer of the defendant.

With respect to the second paragraph of the notice regarding discovery and inspection of accident reports by the motorman and station agent, the defendant objects on the ground that "reports of accidents made by employees to their employers are not the proper subjects of discovery unless it is established that the reports were made in the ordinary course of business of the defendant or that the reports constitute admissions". The defendant cites McCormick v. Mars Assoc. (25 A.D.2d 433) for the proposition that accident reports are discoverable only upon a showing that they would be admissible in evidence as statements made in the regular course of business or as admissions by the defendant.

There is no doubt that McCormick (supra, p. 434) stands for that proposition for the court in that case said: "Moreover, insofar as the court directed discovery and inspection of reports of accidents made by defendants' employees to the defendants, in the absence of any showing that such statements were made in the regular course of business and admissible in evidence or constitute admissions by the defendants, the court committed error."

For its authority McCormick (supra) cites Bresson v. Radio City Music Hall Corp. (23 A.D.2d 581) which in turn cites Ciaffone v. Manhattantown, Inc. (20 A.D.2d 666) and Briant v. New York City Tr. Auth. (7 A.D.2d 756). The rationale of all of these cases may be gleaned from Briant (supra) a pre-CPLR case, wherein the Appellate Division stated: "Reports of accidents made by employees of a railroad to the railroad are not evidence, and their discovery and inspection by an adverse party may not be compelled." (Emphasis supplied.)

This court is of the opinion, however, that this line of Second Department cases is no longer the law in view of the recent decision of the Court of Appeals in Allen v. Crowell-Collier Pub. Co. (supra). (See Peretz v. Blekicki, 31 A.D.2d 934.) Allen has laid to rest the theory that pretrial discovery procedures must be limited to evidence directly related to the issues raised by the pleadings. The Court of Appeals has adopted the rule enunciated by the Fourth Department in Matter of Comstock (21 A.D.2d 843) that if "there is any possibility that the information is sought in good faith for possible use as evidence-in-chief or in rebuttal or for cross examination, it should be considered 'evidence material * * * in the prosecution or defense.'" (Emphasis supplied.)

While Allen involved a motion relating to written interrogatories, the court made no attempt to limit its application to that form of disclosure. It seems clear that Allen was intended to serve as a guide to the courts in interpreting all aspects of article 31 of the CPLR. Indeed the Appellate Division for the Second Department in Peretz (supra) together with this court (Hartley v. Ring, 58 Misc. 2d 618) has already applied its philosophy to motions involving discovery of witnesses' names. The Second Department, in Peretz (supra), indicated that it is adopting a philosophy of more liberal interpretation of the permissible use of pretrial procedures.

This is not to say, however, that a court is to sanction an unbridled romp through an adversary's files. Orderly procedure must still be utilized. (Rios v. Donovan, 21 A.D.2d 409, 413, 414.) In the case of discovery and inspection, the rule itself requires that a notice must be served in which the documents sought to be discovered are "specifically designated" and "specified with reasonable particularity". (P. H. C., Inc. v. Wolf, 30 A.D.2d 980; Pacer v. Clarence A. Hackett, Inc., 30 A.D.2d 934; Haftel v. Appleton, 21 A.D.2d 651; Rios v. Donovan, supra ; CPLR 3120, subd. [a], par. 1, cl. [i].)

Weinstein-Korn-Miller (vol. 3, N. Y. Civ. Prac., par. 3120. 17), in their treatise on New York Civil Practice, state, with regard to this requirement, that it "is designed to protect against unreasonable rummaging through books and records, but it should not be used to prevent disclosure for lack of technical compliance. Under former law, section 327 of the Civil Practice Act was held to apply only to documents 'specifically mentioned' on the theory that 'the court would find difficulty in determining which documents to exclude in the event that the party failed to produce them.' A description by type of book or function of record with dates would in most instances be all that a party seeking the discovery could be expected to use in his notice since he would normally not have any intimate knowledge of another party's record keeping system."

As a general rule, an examination before trial, together with the limited discovery in aid of an examination as permitted by CPLR 3111, should precede a general discovery. (Lotterman v. McGraw & Co., 29 A.D.2d 536; see Eifert v. Bush, 27 A.D.2d 950, 951; Empire Brushes v. C. I. Prods., 26 A.D.2d 948.) Although this general rule is not invariable (Johnson, Drake & Piper v. State of New York, 57 Misc. 2d 846, 847), an examination before trial should first be held in any case where the party seeking discovery lacks sufficient knowledge to frame a notice complying with CPLR 3120 (subd. [a], par. 1, cl. [i]). (Cf. Rios v. Donovan, supra, p. 414; 3 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3120.22.) If an examination before trial is held, a foundation for a future ...

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