Opinion
2012-04-17
John A. DEL VECCHIO, et al., plaintiffs, v. DANIELLE ASSOCIATES, LLC, defendant third-party plaintiff-appellant, et al., defendant;Saturn of Newburgh, Inc., third-party defendant-respondent(and a second third-party action).
Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (Patrick J. Lawless and Richard E. Lerner of counsel), for defendant third-party plaintiff-appellant. Gallagher, Walker, Bianco & Plastaras, Mineola, N.Y. (Michael R. Walker of counsel), for third-party defendant-respondent.
Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, N.Y. (Patrick J. Lawless and Richard E. Lerner of counsel), for defendant third-party plaintiff-appellant. Gallagher, Walker, Bianco & Plastaras, Mineola, N.Y. (Michael R. Walker of counsel), for third-party defendant-respondent.
REINALDO E. RIVERA, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.
In an action to recover damages for personal injuries, etc., the defendant third-party plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Silber, J.), entered August 26, 2011, as denied that branch of its motion which was to compel the third-party defendant to produce records of repairs made to the subject parking lot following the date of the subject accident.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant third-party plaintiff which was to compel the third-party defendant to produce records of repairs made to the subject parking lot following the date of the subject accident is granted.
In October 2008 the injured plaintiff and his wife, suing derivatively, commenced this action to recover damages for personal injuries allegedly sustained by the injured plaintiff when he fell in a parking lot owned by the defendant third-party plaintiff, Danielle Associates, LLC (hereinafter Danielle), and leased by the third-party defendant, Saturn of Newburgh, Inc. (hereinafter Saturn). Insofar as relevant here, the Supreme Court denied that branch of Danielle's motion which was to compel Saturn to produce records of repairs made to the subject parking lot following the date of the subject accident.
CPLR 3101(a) requires full disclosure of all evidence material and necessary in the prosecution or defense of an action ( see Giordano v. New Rochelle Mun. Hous. Auth., 84 A.D.3d 729, 730–731, 922 N.Y.S.2d 518; Kooper v. Kooper, 74 A.D.3d 6, 10, 901 N.Y.S.2d 312). “Evidence of subsequent repairs and remedial measures is not discoverable or admissible in a negligence case unless there is an issue of maintenance or control” ( Cleland v. 60–02 Woodside Corp., 221 A.D.2d 307, 308, 633 N.Y.S.2d 529; see Hughes v. Cold Spring Constr. Co., 26 A.D.3d 858, 859, 809 N.Y.S.2d 751; Niemann v. Luca, 214 A.D.2d 658, 625 N.Y.S.2d 267; Cacciolo v. Port Auth. of N.Y. & N.J., 186 A.D.2d 528, 530, 588 N.Y.S.2d 350; Klatz v. Armor El. Co., 93 A.D.2d 633, 637, 462 N.Y.S.2d 677).
Here, the material sought by Danielle may be relevant in determining which entity maintained and controlled the area where the accident allegedly occurred. Thus, such material is properly subject to disclosure. Accordingly, the Supreme Court should have granted that branch of Danielle's motion which was to compel Saturn to produce records of repairs made to the subject parking lot following the date of the subject accident ( see Hughes v. Cold Spring Constr. Co., 26 A.D.3d at 859, 809 N.Y.S.2d 751; DeRoche v. Methodist Hosp. of Brooklyn, 249 A.D.2d 438, 439, 671 N.Y.S.2d 319).