Opinion
April 4, 1960
Abraham Freundlich for plaintiff.
Charles H. Tenney, Corporation Counsel, for defendant.
Motion by plaintiff to examine before trial the defendant the City of New York by certain designated agents or employees thereof, and for the production, upon the examination, of records, books, papers, documents, correspondence and other writings relating to the matters in controversy and to the dealings or transactions between the parties, as alleged in the complaint. The action, in which issue is joined, is one to recover for personal injuries alleged to have been sustained by the infant plaintiff while a patient in Kings County Hospital. The agents or employees of the city sought to be examined by the plaintiff are the doctor and the nurse in charge of the ward in which the infant was kept, unlicensed personnel in attendance upon the infant immediately after discovery of the alleged injury, and such other employees of the defendant who had knowledge of, or who attended upon the infant plaintiff. No objection is made by the city to the examination before trial per se. However, the defendant city properly objects to the designation by plaintiff of the individuals to be examined. The choice of persons to be examined does not rest, in the first instance, with the examining party. It is sufficient if the city produces one or more of its agents or employees having knowledge of the facts under inquiry ( Hansen v. City of New York, 283 App. Div. 891; Halpern v. Cavanaugh, 208 Misc. 131). If after the examination of the person or persons produced, it shall appear that a further examination of any specific person or persons is necessary, application may be made to the court for such further examination ( Hansen v. City of New York, supra). The production of records, books, papers, as sought by plaintiff, is too broad in scope (see Popper v. American Ice Co., 73 N.Y.S.2d 415; Munsie v. Highland Hosp., 8 Misc.2d 487). Defendant, however, is directed to produce upon the examination to be held herein all such records, books and the like as are relevant for use in accordance with the provisions of section 296 of the Civil Practice Act. The examination before trial is to be held at a time and place to be agreed upon by the parties and to be inserted in the order to be entered herein. Settle order on notice.