Goldstein v. News York Daily News

106 A.D.2d 323, 482 N.Y.S.2d 768, 1984 N.Y. App. Div. LEXIS 21378

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 1984
• Status: Published

Opinions

—Order, Supreme Court, New York County (A. Ascione, J.), entered March 16, 1984, granting the motion of appellant New York Daily News for renewal, and on renewal, adhering to prior determination in order of August 26, 1983, is modified on the law, and in the exercise of discretion, so as to strike the direction to appellant New York Daily News to produce the March 19,1982 report, and the order is otherwise affirmed, without costs.

It appears from the record without contradiction that after the accident Mr. Schiavi, the News’ manager of safety and loss prevention, informed the News’ attorneys that the employee (petitioner’s decedent) had been injured while at work, and Mr. Schiavi sought advice from the attorneys how to handle the incident; that at that point the attorneys asked Mr. Schiavi “to investigate the incident and to prepare a report for that firm’s use in anticipation of litigation”; that consequently Mr. Schiavi investigated the accident and prepared the “confidential report” of March 19, 1982, which was transmitted directly to the attorneys.

(1) The report was prepared “in preparation for litigation” (CPLR 3101, subd [d], par 2). Although the News could not be sued by petitioner, its employees’ administratrix, it is clear that there was a substantial risk that it would be sued as a third-party defendant, and in fact it has been. The report was prepared at the request of the attorneys, for the attorneys’ use and recites on its title page that it was prepared in anticipation of litigation.

(2) The report is not rendered subject to disclosure by CPLR 3101 (subd [g]). “Not all written statements about an accident by an employee of a corporate defendant are discoverable pursuant to CPLR 3101 (subd [g]). To be discoverable the accident report must have been ‘prepared in the regular course of business operations or practices of [the] * * * corporation’ (CPLR 3101, subd [g]). Therefore, written reports of accidents prepared by an employee as part of the regular course of business operations or practices of the corporate tort-feasor and assembled for transmittal to its attorney, even where the sole motive behind the business operations or practices is litigation, are discoverable (see Pataki v Kiseda, 80 AD2d 100, mot for Iv to app dsmd 54 NY2d 831). A distinction exists between said reports and written statements of accidents prepared exclusively for litigation, but not in the regular course of the tort-feasor’s business operations or practices. Such reports are conditionally exempt from disclosure under CPLR 3101 (subd [d]). Examples of the latter are accident reports made by a defendant to his liability insurance carrier or his attorney with respect to the plaintiffs’ claim” (Matos v Akram & Jamal Meat Corp., 99 AD2d 527). This report was not prepared in “the regular course of business Operations or practices” of the News, but only at the request of its attorneys for the use of the attorneys.

The News does not contend that all its accident reports relating to this accident are exempt from disclosure. It has in fact furnished other such reports to petitioner. It claims the privilege only as to the March 19, 1982 report prepared at the express request of the attorneys in connection with the News seeking professional services from the attorneys.

(3) Petitioner sought this information as preaction disclosure to enable petitioner to frame a complaint. But during the pendency of the motion for renewal, petitioner served a complaint — to be sure, because of the Statute of Limitations problem. All that the report can now do is to enable petitioner to serve an amended and more specific complaint. That sort of information can be obtained, to the extent that petitioner is entitled to or needs it, by disclosure proceedings in the pending action. Petitioner makes no claim that he needs this information to know whom else to sue; in fact the News has furnished petitioner with an affidavit stating that the March 19, 1982 report contains no undisclosed information regarding the identity of any manufacturer, installer, repairer or maintainer of the machine in question. Concur — Silverman, J. P., Bloom, Fein and Milonas, JJ.