Opinion
May 17, 1971
In a negligence action to recover damages for personal and property injuries, defendants appeal, as limited by their brief, from part of an order of the Supreme Court, Queens County, entered December 29, 1970, granting plaintiff's motion to examine defendant Alexander's Rent-A-Car, Inc., before trial and to compel both defendants to produce certain matter for discovery and inspection, namely, insofar as the order directs discovery and inspection of the matter described in items 2, 3, 4 and 6 set forth in the affidavit in support of the motion. Order modified by adding thereto a provision that the matter described in said items 2, 4 and 6 need not be produced and that production of the matter described in item 3 is limited to such maintenance, repair and inspection records pertaining to the vehicle involved in the accident as may be in defendant Alexander's possession and control. As so modified, order affirmed insofar as appealed from, with $10 costs and disbursements to appellants. There is nothing in the moving papers to indicate that the physical and/or mental condition of defendant Roselle is in controversy ( Koump v. Smith, 25 N.Y.2d 287, 294-295; cf. Constantine v. Diello, 24 A.D.2d 821, 822). Item 3 is too broad and all-encompassing to constitute a proper demand (cf. Pacer v. Clarence A. Hackett, Inc., 30 A.D.2d 934) and should be limited to the extent indicated above. The statement given by Roselle to Alexander's insurance company is not discoverable ( Finegold v. Lewis, 22 A.D.2d 447) and there is no showing by plaintiff that any record made by Alexander's agent of Roselle's telephone report after the accident was made in the regular course of business ( McCormick v. Mars Assoc., 25 A.D.2d 433; Bresson v. Radio City Music Hall Corp., 23 A.D.2d 581, 582). Item 6 does not specifically designate any particular statements or documents and is improper (see Rios v. Donovan, 21 A.D.2d 409, 414). Rabin, P.J., Munder, Latham, Christ and Brennan, JJ., concur.