Opinion
June 2, 1948.
Abelove, Myers Rosenblum for plaintiff.
Kernan Kernan for defendant.
The plaintiff has made this motion for an order permitting the plaintiff to inspect and make a copy of a statement given to a representative of the defendant concerning the accident as the result of which the plaintiff is alleged to have suffered personal injuries to recover damages for which this action has been brought.
The accident occurred November 24, 1947, and the statement, inspection of which is sought, was made December 15, 1947. The plaintiff states in her original affidavit that at the time of giving the statement she had not retained an attorney and that she was in a dazed and weakened condition as the result of the injuries sustained in the accident and that she is unable at the present time to recall the exact contents of the statement.
The defendant has offered the affidavit of defendant's representative who took the statement in which it is alleged that the plaintiff at the time of giving the statement was up and around and that she discussed the facts of the accident and signed the statement written out by defendant's representative after reading the same; that she appeared to be mentally alert and seemed to be in complete command of her faculties and that she walked about freely and without any physical hindrance. After the oral argument the plaintiff filed an additional affidavit in which she added certain allegations as to the nature and extent of her injuries and her condition on December 15, 1947.
This statement was taken about three weeks after the happening of the accident and one week after the plaintiff had been discharged from the hospital. Under the circumstances disclosed by the affidavits, it would seem that the motion of plaintiff should be denied. ( Sack v. All States Holding Corp., 268 A.D. 793; La Maida v. Miledna Realty Corp., 182 Misc. 690; Sevon v. Rockmaker, 269 A.D. 1057.)
An order in accordance with the foregoing may be entered, with costs to the defendant to abide the event.