McKinstry v. Werner Machine Co.

133 A.D.2d 361, 519 N.Y.S.2d 264, 1987 N.Y. App. Div. LEXIS 49868

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 14, 1987
• Status: Published

Opinion

In an action to recover damages for personal injuries, etc., the plaintiffs and the defendant third-party plaintiff separately appeal from so much of an order of the Supreme Court, Dutchess County (Benson, J.), entered October 1, 1986, as, upon the third-party defendant’s motion, directed them to comply with items Nos. 1 through 5, and items Nos. 7 and 8 of a notice for discovery and inspection served by the third-party defendant.

Ordered that the order is modified, on the law, by (1) deleting the provision thereof which directed the plaintiffs and the defendant third-party plaintiff to comply with items Nos. 1 through 5, and item No. 7 of the subject notice for discovery and inspection, and substituting therefor a provision denying those branches of the third-party defendant’s motion, and (2) adding a provision thereto that, in connection with item No. 8, the plaintiffs and the defendant third-party plaintiff shall be required to produce only so much of their experts’ reports as contain factual data relating to the machine; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the time for the plaintiff and the defendant third-party plaintiff to comply with the notice for discovery and inspection, as so limited, is extended until 20 days after service upon them of a copy of this decision and order, with notice of entry.

The plaintiffs commenced this action prior to July 1, 1985. Accordingly, the amended provisions of CPLR 3101 (d) in effect at the time of this appeal do not govern the disclosure obligations of either the plaintiff or the defendant third-party plaintiff (see, L 1985, ch 294, § 25; see also, Rogowski v Day Co., 130 Misc 2d 801). However, the third-party defendant has demonstrated the existence of circumstances sufficient under the former provisions of CPLR 3101 (d), to warrant limited disclosure of the experts’ reports prepared for the plaintiff and the defendant third-party plaintiff (see, Stevens v Metropolitan Suburban Bus Auth., 117 AD2d 733; Anastasia v Barnes, 109 AD2d 769; Terwilliger v Leach Co., 88 AD2d 910, 911). The order under review is modified accordingly. Mangano, J. P., Eiber, Sullivan and Harwood, JJ., concur.