Niemann v. Luca

214 A.D.2d 658, 625 N.Y.S.2d 267, 1995 N.Y. App. Div. LEXIS 4316

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 17, 1995
• Status: Published

Opinion

In an action to recover damages for personal injuries, the defendant Town of Smithtown, appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Oshrin, J.), dated January 31, 1994, as directed it to provide discovery and inspection of postaccident repairs and remedial measures.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, by deleting therefrom the provision directing the Town of Smithtown to provide discovery and inspection of postaccident repairs and remedial measures.

Evidence of subsequent repairs and remedial measures is not discoverable or admissible in a negligence case unless, unlike in this case, there is an issue of maintenance or control (see, Cacciolo v Port Auth., 186 AD2d 528; Klatz v Armor El. Co., 93 AD2d 633).

On the other hand, it has been consistently held that evidence of subsequent accidents at the same place and under the same conditions as the accident in question, while of no probative value regarding the question of notice, is admissible to establish the existence of a dangerous condition, instrumentality, or place (Klatz v Armor El. Co., supra). Bracken, J. P., Rosenblatt, Krausman and Goldstein, JJ., concur.