O'Connor v. Larson

Appellate Division of the Supreme Court of New York

O'Connor v. Larson

74 A.D.2d 734, 425 N.Y.S.2d 702, 1980 N.Y. App. Div. LEXIS 10429

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 20, 1980

StatusPublished

Cited by5 cases

This text of 74 A.D.2d 734 (O'Connor v. Larson) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

O'Connor v. Larson, 74 A.D.2d 734, 425 N.Y.S.2d 702, 1980 N.Y. App. Div. LEXIS 10429 (N.Y. Ct. App. 1980).

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Opinion

Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: In this personal injury action, the complaint alleges that a dog owned by defendant attacked [735]*735and injured the infant plaintiff. While Special Term directed plaintiffs to supply defendant with the names and addresses of persons who witnessed the incident, it denied defendant’s request for the names and addresses of witnesses to the alleged prior vicious propensities exhibited by the dog, holding that this information was "material prepared for litigation” (CPLR 3101, subd [d]). Defendant appeals from this order. Special Term erred in denying disclosure of the names and addresses of these witnesses. Plaintiffs alleged that the defendant had knowledge that his dog "was of a fierce and vicious nature and possessed a propensity to attack and bite persons who might come near,” key elements to plaintiff’s cause of action based in negligence. A party is required to disclose the identity of eyewitnesses to the occurrence "even if obtained by investigation made after the occurrence” (Zellman v Metropolitan Transp. Auth., 40 AD2d 248, 251). "There is no satisfactory ground for distinguishing between a witness to the [incident] itself and one who can reflect on some cause of it” (Siegel, New York Practice, § 349, p 432; see, also, Foremost Ins. Co. v 3 Grace Ave., 58 AD2d 590; Zayas v Morales, 45 AD2d 610). As noted by Professor David D. Siegel in elaborating on the meaning of the words "event itself’, found in some of the cases, the term "can reasonably be regarded as embracing all of those who witnessed at first hand any element that reflects on the liability issue in the case” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3101:42, pp 46-47). (Appeal from order of Erie Supreme Court — disclosure.) Present — Cardamone, J. P., Simons, Schnepp, Doerr and Moule, JJ.

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Order unanimously modified and, as modified, affirmed, without costs, in accordance with the following memorandum: In this personal injury action, the complaint alleges that a dog owned by defendant attacked [735]*735and injured the infant plaintiff. While Special Term directed plaintiffs to supply defendant with the names and addresses of persons who witnessed the incident, it denied defendant’s request for the names and addresses of witnesses to the alleged prior vicious propensities exhibited by the dog, holding that this information was "material prepared for litigation” (CPLR 3101, subd [d]). Defendant appeals from this order. Special Term erred in denying disclosure of the names and addresses of these witnesses. Plaintiffs alleged that the defendant had knowledge that his dog "was of a fierce and vicious nature and possessed a propensity to attack and bite persons who might come near,” key elements to plaintiff’s cause of action based in negligence. A party is required to disclose the identity of eyewitnesses to the occurrence "even if obtained by investigation made after the occurrence” (Zellman v Metropolitan Transp. Auth., 40 AD2d 248, 251). "There is no satisfactory ground for distinguishing between a witness to the [incident] itself and one who can reflect on some cause of it” (Siegel, New York Practice, § 349, p 432; see, also, Foremost Ins. Co. v 3 Grace Ave., 58 AD2d 590; Zayas v Morales, 45 AD2d 610). As noted by Professor David D. Siegel in elaborating on the meaning of the words "event itself’, found in some of the cases, the term "can reasonably be regarded as embracing all of those who witnessed at first hand any element that reflects on the liability issue in the case” (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3101:42, pp 46-47). (Appeal from order of Erie Supreme Court — disclosure.) Present — Cardamone, J. P., Simons, Schnepp, Doerr and Moule, JJ.

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Bluebook (online)

74 A.D.2d 734, 425 N.Y.S.2d 702, 1980 N.Y. App. Div. LEXIS 10429, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oconnor-v-larson-nyappdiv-1980.

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