Opinion
2014-07513
2015-07-15
Viana GRAHAM, appellant, v. KONE, INC., respondent.
Skelos, J.P., Balkin, Chambers and Miller, JJ., concur.
Kujawski & Kujawski, Deer Park, N.Y. (Bryan P. Kujawski of counsel), for appellant. Ansa Assuncao, LLP, White Plains, N.Y. (Thomas O'Connor of counsel), for respondent.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Garguilo, J.), dated May 12, 2014, which denied her motion to compel the defendant to produce records of repairs made to the subject elevator following the date of the subject accident.
ORDERED that the order is affirmed, with costs.
CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof” ( see Giordano v. New Rochelle Mun. Hous. Auth., 84 A.D.3d 729, 922 N.Y.S.2d 518; Kooper v. Kooper, 74 A.D.3d 6, 901 N.Y.S.2d 312). “[E]vidence of subsequent repairs is not discoverable or admissible in a negligence case” (Klatz v. Armor El. Co., 93 A.D.2d 633, 637, 462 N.Y.S.2d 677; see Del Vecchio v. Danielle Assoc., LLC, 94 A.D.3d 941, 942 N.Y.S.2d 217; McConnell v. Santana, 30 A.D.3d 481, 816 N.Y.S.2d 372; Orlando v. City of New York, 306 A.D.2d 453, 761 N.Y.S.2d 528). An exception to this rule applies if a defendant's maintenance of, or control over, the subject instrumentality is at issue ( see Del Vecchio v. Danielle Assoc., LLC, 94 A.D.3d at 942, 942 N.Y.S.2d 217; Watson v. FHE Servs., 257 A.D.2d 618, 684 N.Y.S.2d 283; Angerome v. City of New York, 237 A.D.2d 551, 655 N.Y.S.2d 990).
Here, the plaintiff moved to compel production of post-accident repair records generated during the three-year period between the date of the plaintiff's accident and the date of the inspection of the subject elevator by the plaintiff's expert. Yet it is undisputed that the defendant exercised maintenance and control over the elevator. Accordingly, the Supreme Court properly denied the plaintiff's motion, as such evidence is not discoverable and is not admissible at trial ( see Del Vecchio v. Danielle Assoc., LLC, 94 A.D.3d at 942, 942 N.Y.S.2d 217; McConnell v. Santana, 30 A.D.3d at 482, 816 N.Y.S.2d 372; Orlando v. City of New York, 306 A.D.2d at 454, 761 N.Y.S.2d 528).