CPLR § 3101 Scope of disclosure

CPLR § 3101 Scope of disclosure

(g) Accident reports

Filoramo v City of New York, 2009 NY Slip Op 02969 (App. Div., 2nd, 2009)

Although a municipality, in the first instance, has the right to
determine which of its officers or employees with knowledge of the
facts may appear for a deposition, a plaintiff may demand production of
additional witnesses when (1) the officers or employees already deposed
had insufficient knowledge or were otherwise inadequate, and (2) there
is a substantial likelihood that the person sought for deposition
possesses information which is material and necessary to the
prosecution of the case (see Seattle Pac. Indus., Inc. v Golden Val. Realty Assoc., 54 AD3d 930, 933; Douglas v New York City Tr. Auth., 48 AD3d 615, 616; Sladowski-Casolaro v World Championship [*2]Wrestling, Inc., 47 AD3d 803, 804; Del Rosa v City of New York, 304
AD2d 786). The plaintiffs established that the witnesses produced by
the respondent for deposition had insufficient knowledge regarding the
making of a line-of-duty injury report which was material and necessary
to the prosecution of the action (see D & S Realty Dev., L.P. v Town of Huntington, 295 AD2d 306, 308; Harris v Town of Islip, 268 AD2d 459, 460-461; D'Ulisse v Town of Oyster Bay, 81
AD2d 825, 826). Furthermore, the employee the plaintiffs sought to
depose was the investigating officer who signed the line-of-duty injury
report and made the original records that were copied into the report (see CPLR
4518[a]). Accordingly, that branch of the plaintiffs' motion which was
to compel the respondent to produce the employee for a deposition
should have been granted.

The plaintiffs, however, failed to make a clear showing that
the respondent willfully and contumaciously defied the directive of the
preliminary conference order to produce all accident reports, or
willfully and contumaciously withheld relevant documents (see CPLR 3101[g]; Paca v City of New York, 51 AD3d 991, 993; Brandes v North Shore Univ. Hosp., 22 AD3d 778; Briggs v Allstate Ins. Co., 1
AD3d 392, 393). Accordingly, that branch of the plaintiffs' motion
which was pursuant to CPLR 3126 to strike the respondent's answer was
properly denied.

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