Totoritus v. Stefan

Appellate Division of the Supreme Court of New York

Totoritus v. Stefan

6 A.D.2d 123, 175 N.Y.S.2d 802, 1958 N.Y. App. Div. LEXIS 5290

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

DecidedJuly 1, 1958

StatusPublished

Cited by3 cases

This text of 6 A.D.2d 123 (Totoritus v. Stefan) 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

Totoritus v. Stefan, 6 A.D.2d 123, 175 N.Y.S.2d 802, 1958 N.Y. App. Div. LEXIS 5290 (N.Y. Ct. App. 1958).

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Opinions

Per Curiam.

Defendant in a personal injury negligence action appeals from an order on plaintiff’s motion requiring, among other things, that defendant furnish copies of a statement made by plaintiff to defendant’s investigator.

The statement was obtained from plain jiff before the action was commenced and before plaintiff was represented by counsel, and in the absence of counsel or legal advice. He was not given a copy of the statement he signed. Under the circumstances, copies of the statement should be made available to plaintiff.

While it is recognized that such discovery affords a party an opportunity to accommodate his testimony to the prior statement (assuming that the statement, as recorded, is an accurate one), it also provides an opportunity to the party to correct any inaccuracies or distortions that may have occurred in the recording of the statement. No generalization is safe which is based on any premise which assumes the integrity, or lack of it, either in the giving of the prior statement or in the recording thereof. (See, e.g., La Maida v. Miledna Realty Corp., 182 Misc. 690; cf. Destin v. Bernhard Mayer Estate, Inc., 123 N. Y. S. 2d 271.)

For these reasons this court favors the rule adopted in the Third Department in Wilhelm v. Abel (1 A D 2d 55). Acceptance of that rule in this department was presaged in Urbina v. McLain (4 A D 2d 589), a recent decision which denied discovery of a witness’ statement, but in passing noted, by contrast, that recent eases have adopted the rule permitting inspection of a party’s own statement to the opponent’s investigator. It was there also pointed out that since a statement of a party may constitute an admission which could be received in evidence, it is a proper item for inspection. (For cases at the appellate level and at Special Term illustrating the positive movement toward inspection of statements obtained from the opposing party, see Tripp, A Guide to Motion Practice [rev. ed.], p. 215.)

[125]*125This holding is consonant with the policy of broadening pretrial discovery. It is also suggested by the danger and unfairness which frequently occur in the taking of statements from laymen by laymen in the absence of counsel or legal advice. This is aggravated when a copy of the statement is not given the maker.

Accordingly, the order granting plaintiff’s motion should be affirmed on the law and on the facts, and in the exercise of discretion, with costs to plaintiff-respondent.

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Per Curiam.

Defendant in a personal injury negligence action appeals from an order on plaintiff’s motion requiring, among other things, that defendant furnish copies of a statement made by plaintiff to defendant’s investigator.

The statement was obtained from plain jiff before the action was commenced and before plaintiff was represented by counsel, and in the absence of counsel or legal advice. He was not given a copy of the statement he signed. Under the circumstances, copies of the statement should be made available to plaintiff.

While it is recognized that such discovery affords a party an opportunity to accommodate his testimony to the prior statement (assuming that the statement, as recorded, is an accurate one), it also provides an opportunity to the party to correct any inaccuracies or distortions that may have occurred in the recording of the statement. No generalization is safe which is based on any premise which assumes the integrity, or lack of it, either in the giving of the prior statement or in the recording thereof. (See, e.g., La Maida v. Miledna Realty Corp., 182 Misc. 690; cf. Destin v. Bernhard Mayer Estate, Inc., 123 N. Y. S. 2d 271.)

For these reasons this court favors the rule adopted in the Third Department in Wilhelm v. Abel (1 A D 2d 55). Acceptance of that rule in this department was presaged in Urbina v. McLain (4 A D 2d 589), a recent decision which denied discovery of a witness’ statement, but in passing noted, by contrast, that recent eases have adopted the rule permitting inspection of a party’s own statement to the opponent’s investigator. It was there also pointed out that since a statement of a party may constitute an admission which could be received in evidence, it is a proper item for inspection. (For cases at the appellate level and at Special Term illustrating the positive movement toward inspection of statements obtained from the opposing party, see Tripp, A Guide to Motion Practice [rev. ed.], p. 215.)

[125]*125This holding is consonant with the policy of broadening pretrial discovery. It is also suggested by the danger and unfairness which frequently occur in the taking of statements from laymen by laymen in the absence of counsel or legal advice. This is aggravated when a copy of the statement is not given the maker.

Accordingly, the order granting plaintiff’s motion should be affirmed on the law and on the facts, and in the exercise of discretion, with costs to plaintiff-respondent.

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Bluebook (online)

6 A.D.2d 123, 175 N.Y.S.2d 802, 1958 N.Y. App. Div. LEXIS 5290, Counsel Stack Legal Research, https://law.counselstack.com/opinion/totoritus-v-stefan-nyappdiv-1958.

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