Opinion
January 18, 1971
In an action to recover damages for wrongful death of plaintiff's wife and infant son, defendant appeals from an order of the Supreme Court, Kings County, dated August 27, 1970, which (1) granted plaintiff's motion to vacate defendant's subpoenas and notice to examine two witnesses before trial and (2) denied defendant's cross motion to examine said witnesses and also two hospitals as witnesses. Order modified by (1) striking from the first decretal paragraph thereof the words "is granted" and inserting in said paragraph, immediately after "Mr. Mrs. Gilbert", the following: "is granted only to the extent that the examination of the witnesses Mr. and Mrs. Paul M. Gilbert shall be limited to the issues of liability and damages and the plaintiff's motion is otherwise denied"; and (2) adding to the second decretal paragraph thereof the following: "except that the defendant's cross motion is granted to the extent that a limited examination of the witnesses Mr. and Mrs. Gilbert is allowed as hereinabove provided." As so modified, order affirmed, with $10 costs and disbursements to appellant. The examination of the witnesses Gilbert shall proceed upon a new notice of not less than 10 days, to be given by appellant. The deaths were allegedly caused by plaintiff's wife's ingestion of a drug manufactured by defendant. The latter, by its notice and subpoenas, sought to take the depositions of plaintiff's former mother-in-law and father-in-law (Mr. and Mrs. Paul M. Gilbert); and, by its cross motion, sought an order to take the depositions of the Gilberts and two hospitals, the hospitals solely for the purpose of determining venue, and the Gilberts for the purpose of eliciting facts relevant to venue, their daughter's health history, and the payment of expenses connected with their daughter's death, concerning which payment evidence of seemingly contradictory statements made by plaintiff and Mrs. Gilbert was presented to Special Term. With respect to venue, defendant was properly denied disclosure, for the action at bar was commenced in the county of plaintiff's appointment as administrator (CPLR 503, subd [b]). With respect to the history of plaintiff's wife's health and the payment of the above expenses, it was an abuse of discretion to deny defendant disclosure. Knowledge exclusively possessed by prospective witnesses, touching liability and damages, combined with their refusal to speak except by force of subpoena, establishes the special circumstances required for a disclosure order pursuant to CPLR 3101 (subd. [a], par. [4]) even in the absence of a relationship between the witnesses and an adverse party ( Maso Mach. Tool Corp. v. Sabatino, 15 A.D.2d 579; Bartlett v. Sanford, 244 App. Div. 722; see Southbridge Finishing Co. v. Golding, 2 A.D.2d 430, 435). Rabin, P.J., Hopkins, Munder, Martuscello and Latham, JJ., concur.