SACCENTE v. TOTERHI


35 A.D.2d 692 (1970)

Frank Saccente, Jr., et al., Respondents, v. Lee J. Toterhi et al., Appellants

Appellate Division of the Supreme Court of the State of New York, First Department.

October 1, 1970


Order entered on February 16, 1970, which denied a motion for an order vacating a notice for discovery and inspection of photographs of plaintiff taken by defendants' representative, affirmed, without costs and without disbursements.

By the notice of discovery plaintiff seeks photographs taken by a representative of the defendants' insurance carrier only a short time after the accident and before the plaintiff, who was an infant at that time, had retained an attorney. The photographs were taken only after plaintiff had granted permission therefor. In these circumstances we believe that Special Term was correct in allowing discovery. Four years having passed since the photographs were taken, the same conditions no longer exist and plaintiff cannot otherwise duplicate such photographs. (Cf. Murdick v. Bush, 44 Misc.2d 527; CPLR 3101, subd. [d]). Moreover, under the circumstances above mentioned, the photographs properly fall within the terms of CPLR 3101 (subd. [e]) which provides: "A party may obtain a copy of his own statement". Special Term considered these photographs as visual or photograph statements made by plaintiff. As stated in Weinstein-Korn-Miller, N. Y. Civ. Prac. (vol. 3, par. 3101.56) "CPLR 3101(e) is designed to enable an examining party to obtain his own statements without the difficult burden of proving special circumstances, such as fraud or over-reaching on the part of the recipient of the statement — often an investigator from an opponent's insurance company." We believe that the facts of this case are encompassed within the spirit and scope of CPLR 3101 (subd. [e]). Moreover, permitting discovery here is consonant with the modern trend toward allowing full disclosure and construing narrowly limitations, particularly where no prejudice is shown. (See 3 Weinstein-Korn-Miller, N. Y. Civ. Prac., par. 3101.56; Montgomery Ward Co. v. City of Lockport, 44 Misc.2d 923.)

McNally, J.:

I would deny the discovery. The photographs of the plaintiff in question were taken by a representative of the defendants' insurance carrier a short time after the accident. Plaintiffs in tort actions are not entitled to obtain the product of investigations of accidents by automobile liability insurers in preparation for the handling of claims against their insureds. No special circumstances are alleged. There is no showing of prejudice. Plaintiff could have obtained photographs himself if he so desired and may testify as to his appearance and condition at any time after the occurrence as well as at the time the photographs were taken. (Kandel v. Tocher, 22 A.D.2d 513.)


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