Battaglia v. New York City Transit Authority, 2 A.D.2d 985

Battaglia v. New York City Transit Authority

2 A.D.2d 985 | N.Y. App. Div. | 1956

In an action to recover damages for wrongful death and conscious pain and suffering, defendant appeals from an order granting plaintiff’s motion for an examination before trial, for a discovery and inspection, and for other relief. Order modified in the following respects: (1) by striking therefrom the second ordering paragraph and by substituting therefor a provision directing defendant to appear for examination by a sufficient number of its agents, employees and officers having the requisite knowledge of all the relevant facts and circumstances in connection with the accident, and a further provision that the matters upon which the examination is to be had shall consist of all of the relevant facts and circumstances in connection with the accident, including negligence, contributory negligence, liability or damages; (2) by striking from said order the third ordering paragraph and by substituting therefor a provision that the motion, insofar as it seeks a discovery and inspection of defendant’s records, be denied, without prejudice to renewal at the conclusion *986of the examination before trial, and (3) by adding to said order a provision that this disposition of the motion for examination of defendant before trial is without prejudice to a further motion by plaintiff, if so advised, to direct the defendant to appear for a further examination by other specifically described or named persons if, on the examination presently ordered, defendant fails to produce a sufficient number of its agents, employees and officers having the requisite knowledge of all the relevant facts and circumstances. As so modified, order affirmed, without costs; the examination to proceed on 15 days’ notice. In our opinion, it was an improvident exercise of discretion to require the various persons specifically described to appear for examination, in the absence of a showing as to the necessity therefor. Similarly, it was not proper to direct a discovery and inspection of defendant’s records under section 324 of the Civil Practice Act before the conclusion of the examination before trial at which the defendant’s records will be produced under section 296 of the Civil Practice Act in aid of the examination. Nor, in our opinion, is it necessary to detail all the various items of the examination when the general matter specified in rule 121-a of the Rules of Civil Practice will suffice. —■ Nolan, P. J., Wenzel, Ughetta, Hallinan and Kleinfeld, JJ., concur.