From Casetext: Smarter Legal Research

Matter of Nicol v. Town of Rotterdam

Appellate Division of the Supreme Court of New York, Third Department
Nov 19, 1987
134 A.D.2d 754 (N.Y. App. Div. 1987)

Opinion

November 19, 1987

Appeal from the Supreme Court, Schenectady County (Dier, J.).


Petitioners sustained injuries as a result of a one-car accident in respondent Town of Rotterdam, Schenectady County. At the time of the accident, police officers from the Town of Rotterdam, the City of Schenectady and the Village of Scotia were in pursuit of petitioners' vehicle. Petitioners believe that their accident was caused by negligent police procedures, and moved for preaction disclosure of information necessary to frame a complaint and to identify prospective defendants pursuant to CPLR 3102 (c). After respondents had filed affidavits in opposition to the motion, Supreme Court granted petitioners' application and this appeal by the Town of Rotterdam ensued.

The town argues that petitioners' application should have been denied since they failed to submit their own affidavits setting forth the factual basis for their cause of action against respondents. Petitioners' attorney's affidavit, which contains factual averments relative to the negligence claim, was insufficient for this purpose as the attorney did not have firsthand knowledge of the underlying facts (see, Cotler v Retail Credit Co., 18 A.D.2d 898; see also, Stewart v. Socony Vacuum Oil Co., 3 A.D.2d 582, 583). In addition, the documents submitted with the attorney's affidavit, an accident report and a police complaint, were also insufficient to meet petitioners' burden to establish a prima facie cause of action since the facts stated in those documents do not indicate any negligence on the part of the police and did not support the factual averments in the attorney's affidavit. In the absence of an affidavit by someone with firsthand knowledge of the facts establishing petitioners' negligence cause of action, Supreme Court should have denied the application for preaction discovery (see, Cotler v. Retail Credit Co., supra).

Order reversed, on the law, without costs, and application denied. Main, J.P., Mikoll, Yesawich, Jr., Levine and Harvey, JJ., concur.


Summaries of

Matter of Nicol v. Town of Rotterdam

Appellate Division of the Supreme Court of New York, Third Department
Nov 19, 1987
134 A.D.2d 754 (N.Y. App. Div. 1987)
Case details for

Matter of Nicol v. Town of Rotterdam

Case Details

Full title:In the Matter of JAMES A. NICOL et al., Respondents, v. TOWN OF ROTTERDAM…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Nov 19, 1987

Citations

134 A.D.2d 754 (N.Y. App. Div. 1987)

Citing Cases

Talal Bin Sultan Bin Abdul-Aziz Al Saud v. N.Y. & Presbyterian Hosp.

In fact, the only support provided for such a claim is the affirmation of the petitioner's attorney, which…

Matter of Hughes v. Witco Corporation

The supporting affidavits presented a question of fact as to which machine, the calendar or the liner…