41 Misc. 2d 639 | N.Y. Sup. Ct. | 1964
This is a motion for an order, pursuant to section 3101 of the Civil Practice Law' and Rules, directing two employees (one an “examiner” and the other an “ investigater ”) of an insurance company representing certain physician-defendants in this malpractice death action to appear for disclosure with respect to “ all the conversations, correspondence and consultation had with William S. Anapoell [now deceased] concerning the treatment, care and death of Paul Durdovic [plaintiff’s intestate], upon the ground that the said William S. Anapoell is now deceased * * * and directing that Employers Mutuals of Wausau, Gerald Wilson and Edwin Zoeller and produce upon said examination all relavent [sic] "books, records and papers, including hut not limited to all notes taken pertaining to consultations, conversations, conferences and correspondence with William S. Anapoell”.
The papers indicate that plaintiff has heretofore conducted an examination before trial of the said deceased defendant (Dr. Anapoell), consisting of some 40 pages of testimony, for the purpose of framing the complaints in this action, and said examination related primarily to the conduct and actions of Dr. Anapoell in connection with his treatment as an anesthetist of the plaintiff’s intestate during an operation from which said intestate did not survive.
The motion is denied in the exercise of discretion. Subdivision (c) of section 3101 protects the work product of an attorney and subdivision (d) grants a limited privilege for the work of an investigator or a party preparing for litigation (see Practice Commentary by Caesar L. Pitassy and William J. Ryan, and Legislature Studies and Reports). The case of Babcock v. Jackson (40 Misc 2d 757) relied upon by plaintiff in support of this motion, is factually distinguishable from the case at bar. In the Babcock case it appears without question that the deceased defendant (Mr. Jackson) had, prior to his death, signed a written statement and that such statement was in the