Buckwalter v. Food Fair Stores, Inc.

New York Supreme Court

Buckwalter v. Food Fair Stores, Inc.

29 Misc. 2d 93, 216 N.Y.S.2d 427, 1961 N.Y. Misc. LEXIS 2914

CourtNew York Supreme Court

DecidedMay 12, 1961

StatusPublished

Cited by1 cases

This text of 29 Misc. 2d 93 (Buckwalter v. Food Fair Stores, Inc.) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Buckwalter v. Food Fair Stores, Inc., 29 Misc. 2d 93, 216 N.Y.S.2d 427, 1961 N.Y. Misc. LEXIS 2914 (N.Y. Super. Ct. 1961).

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Opinion

Mario Pittoni, J.

Plaintiffs’ motion for an order to compel defendant to complete an examination before trial by supplying the addresses of two former employees is granted as to Gary Cina, and is denied as to Bob Rommel. The motion for an examination before trial of Gary Cina is also granted; the examination shall proceed on five days’ notice.

This is an action to recover for personal injuries allegedly sustained by the infant plaintiff in defendant’s store, when defendant’s employee struck the plaintiff with a hand cart that he was pushing.

The motion in respect to Gary Cina comes within the exception to the general rule that a party may not be compelled to disclose the names of his witnesses. ‘ ‘ A party is entitled to be informed as to the identity of the witness employed by his adversary if the witness participated in, or was responsible for, the accident complained of. (Morris v. E. A. Laboratories, Inc., 263 App. Div. 540; Gutley v. Huron Stevedoring Corp., 274 App. Div. 1061.) ” (Milberg v. Lehrich, 2 A D 2d 861 [2d Dept.].) Therefore, the motion in respect to Gary Cina is granted.

A former employee who participated in the matter at issue is also subject to an examination before trial, as that constitutes special circumstances permitting the examination of a witness before trial (cf. Horowitz v. Alley Pond Park Apts., 2 A D 2d 763 [2d Dept.]). However, the former employee, Bob Rommel, did not participate in or cause the accident. He was merely the clerk who reported the accident to the store manager. Therefore, the motion as to former employee Rommel is denied.

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Mario Pittoni, J.

Plaintiffs’ motion for an order to compel defendant to complete an examination before trial by supplying the addresses of two former employees is granted as to Gary Cina, and is denied as to Bob Rommel. The motion for an examination before trial of Gary Cina is also granted; the examination shall proceed on five days’ notice.

This is an action to recover for personal injuries allegedly sustained by the infant plaintiff in defendant’s store, when defendant’s employee struck the plaintiff with a hand cart that he was pushing.

The motion in respect to Gary Cina comes within the exception to the general rule that a party may not be compelled to disclose the names of his witnesses. ‘ ‘ A party is entitled to be informed as to the identity of the witness employed by his adversary if the witness participated in, or was responsible for, the accident complained of. (Morris v. E. A. Laboratories, Inc., 263 App. Div. 540; Gutley v. Huron Stevedoring Corp., 274 App. Div. 1061.) ” (Milberg v. Lehrich, 2 A D 2d 861 [2d Dept.].) Therefore, the motion in respect to Gary Cina is granted.

A former employee who participated in the matter at issue is also subject to an examination before trial, as that constitutes special circumstances permitting the examination of a witness before trial (cf. Horowitz v. Alley Pond Park Apts., 2 A D 2d 763 [2d Dept.]). However, the former employee, Bob Rommel, did not participate in or cause the accident. He was merely the clerk who reported the accident to the store manager. Therefore, the motion as to former employee Rommel is denied.

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Bluebook (online)

29 Misc. 2d 93, 216 N.Y.S.2d 427, 1961 N.Y. Misc. LEXIS 2914, Counsel Stack Legal Research, https://law.counselstack.com/opinion/buckwalter-v-food-fair-stores-inc-nysupct-1961.

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