Opinion
July 5, 1961
In an action to recover damages for personal injuries suffered by plaintiff wife as she was alighting from one of defendant's buses, and to recover damages for consequent medical expenses and loss of services sustained by her husband, in which the complaint alleges that the accident resulted from the malfunctioning of a dangerously designed, manually operated exit door, and in which the defendant describes such door as a "new push type" door, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County, dated December 8, 1960, as directed it to produce for examination an employee to testify concerning: (1) the service records and complaints respecting such doors on all its buses; and (2) its underwriting or safety test experience in connection therewith. Order modified: (1) by adding to the third decretal paragraph a provision limiting the examination concerning the service records and complaints to the period of one year immediately preceding the accident here involved; and (2) by striking from said paragraph the provision which permits the examination as to the service records and complaints received in connection with "manually operated exit doors on all and other omnibuses owned, operated and controlled by the defendant;" and (3) by substituting therefor a provision which permits the examination as to the service records and complaints received in connection with "all buses operated and controlled by defendant that are equipped with manually operated exit doors, described by the defendant as the `new, push type' doors, which require the user to wait for a light to go on and then to push the door by hand and hold on until the user has alighted from the bus." As so modified, the order, insofar as appealed from, is affirmed, without costs. In our opinion, an examination concerning the specified service records and complaints for the period indicated is all that is necessary for plaintiff's case (cf. Boyle v. Judy Cab Corp., 12 A.D.2d 797). The examination shall proceed on 10 days' written notice or on any other date mutually fixed by the parties. Beldock, Acting P.J., Ughetta, Kleinfeld, Christ and Pette, JJ., concur.