The words "material and necessary" are, in our view, to be interpreted liberally to require disclosure, upon request, of any facts bearing on the controversy which will assist in the preparation for trial by sharpening the issues and reducing the delay and prolixity. The test is one of usefulness and reason (Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403, 406; see, also, Maloney v. Buffalo Sav. Bank, 41 A.D.2d 591; City of Binghamton v. Arlington Hotel, 30 A.D.2d 585). Petitioners contend that they do not have the requested information and items within their possession, custody or control and that they are, consequently, relieved of any obligation to produce these materials.
CPLR 3101 (subd [a]) requires full disclosure of all evidence material and necessary in the prosecution or defense of an action. "Disclosure is required as to all evidence relevant to the case and as to all information reasonably calculated to lead to relevant evidence" (Siegel, New York Practice, ยง 344, p 422; see, also, Allen v Crowell-Collier Pub. Co., 21 N.Y.2d 403). Where the information sought in good faith will have a possible use as evidence in chief or in rebuttal, or for cross-examination, it falls within the scope of the statute as "material and necessary" and discovery should be permitted (see Maloney v Buffalo Sav. Bank, 41 A.D.2d 591; 3A Weinstein-Korn-Miller, N Y Civ Prac, par 3101.07). Special Term properly granted the application to examine Sister Mary Magdalene but erred in denying the application to depose Mother Agnes Cecelia.
The word "evidence" has not been construed in a restrictive sense but rather to mean evidence required in preparation for trial ( Avila Fabrics v. 152 West 36th St. Corp., 22 A.D.2d 238, 241; Groben v. Travelers Ind. Co., 49 Misc.2d 14, 16, affd. 28 A.D.2d 650). Thus, there is permitted a pretrial disclosure of testimony or documents which, while themselves inadmissible, may lead to the disclosure of admissible proof (Wachtell, New York Practice Under the CPLR [4th ed.], pp. 251-252; 3A Weinstein-Korn-Miller, N.Y. Civ. Prac., pars. 3101.04, 3111.04). If there is any possibility that the information is sought in good faith for possible use as evidence-in-chief or for cross-examination or in rebuttal, it should be considered evidence "material" in the action ( Maloney v. Buffalo Sav. Bank, 41 A.D.2d 591; Rohde v. State of New York, 33 A.D.2d 707; Matter of Comstock, 21 A.D.2d 843, 844). The word "necessary" means needful and not indispensable ( State of New York v. De Groot, 35 A.D.2d 240, 242; 3A Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 3101.07).
(See, also, State of New York v. De Groot, 35 A.D.2d 240, 242; Gilbert Adv. Agency v. Seaboard Sur. Co., 34 A.D.2d 513; City of Binghamton v. Arlington Hotel, 30 A.D.2d 585.) The words "material and necessary" are to be interpreted liberally in respect of facts which will expedite the trial and sharpen the issues ( Allen v. Crowell-Collier Pub. Co., 21 N.Y.2d 403, supra; Maloney v. Buffalo Sav. Bank, 41 A.D.2d 591). In the case at bar, paragraph 20 is concerned with the manner in which AVCO acquired rights to the notes in question; paragraphs 35, 36, 37, 42 and 45 are concerned with discovery of a relationship between Colonial and AVCO. Paragraph 49 merely requests a statement to which appellant is entitled in accordance with CPLR 3101 (subd. [e]). Paragraph 50 is concerned with the defense of payment which is raised in appellant's amended answer.
( West v Aetna Cas. Sur. Co., 49 Misc.2d 28.) Disclosure is required as to all relevant information calculated to lead to relevant evidence. (See Siegel, N Y Prac, ยง 344, entitled disclosure criteria; CPLR 3101, subd [a]; Maloney v Buffalo Sav. Bank, 41 A.D.2d 591; Hoenig v Westphal, 52 N.Y.2d 605.) The infant plaintiff herein has waived her right as to her doctor-patient relationship.