|Claimant(s):||LEIDY MARIEL REYES-NUNEZ|
|Claimant short name:||REYES-NUNEZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK, CITY UNIVERSITY OF NEW YORK and THE CITY COLLEGE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DAVID A. WEINSTEIN|
|Claimant's attorney:||Mallilo & Grossman
By: Ann Jen, Esq.
|Defendant's attorney:||Letitia James, New York State Attorney General
By: Indira Mahabir, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 2, 2019|
|See also (multicaptioned case)|
By claim filed June 6, 2017, claimant Leidy Mariel Reyes-Nunez brought this action against the State of New York and the City University of New York ("CUNY"), alleging that on May 3, 2016, when claimant was working in the wood shop at City College of New York where she was a student, "she was caused serious personal injuries when using a sanding machine . . . her shirt and arm got caught/stuck in the moving parts of said machine" (Claim ¶ 27). The claim charges that defendants were negligent in failing to provide safety features for the machine, including "safety guards [and] emergency cutoff switches," and in leaving the machine in a state of disrepair (id. ¶ 29). Claimant also pleads a cause of action for failure to train and supervise her in the use of the machine (id. ¶ 32).
By letter of the Court dated March 5, 2019, I directed the parties to make submissions regarding (1) any documents withheld on privilege grounds; and (2) whether defendants may provide to claimant the last known address of a student witness. The Court has since received submissions from claimant and defendant, and this Decision & Order addresses both issues.
I. The In Camera Inspection
The State has provided the Court with the Report of Richard Belgrave (the "Report") for in camera review. The Report states that it "covers an Environmental Health and Occupational Safety review" of claimant's accident (Report at 1). It was prepared after the events at issue in the claim, seeks to identify possible problems and causes thereof, and suggests remedial measures.
Defendants argue that the Report should be shielded from disclosure under "the general rule . . . that when, after the event, measures are taken, which if taken previously, would have made the event less likely to occur, evidence of those subsequent measures is not admissible to prove negligence or culpable conduct" (Submission for In-Camera Inspection, citing Alfieri v Carmelite Nursing Home, Inc. (29 Misc 3d 509 [Civ Ct, Richmond County 2010]).
In a responding letter, claimant argues (1) evidence of remedial measures is admissible to identify a dangerous condition; and (2) Belgrave testified to the substance of his findings at his deposition, and defendant's objections were thereby waived.
At issue in this dispute is the principle that "evidence concerning post-accident repairs is generally inadmissible absent certain exceptions and is never admissible as proof of admission of negligence" (Fernandez v Higdon El. Co., 220 AD2d 293, 293 [1st Dept 1995]). The rationale for this doctrine is that it is necessary to "encourage postaccident repairs," and any such repairs are in any case irrelevant to the question of "defendant's lack of care at the time of the accident" (see Bolm v Triumph Corp., 71 AD2d 429, 436 [4th Dept 1979], lv dismissed 50 NY2d 801, 928 ; see also Advisory Committee Notes to Federal Rule of Evidence ["FRE"] 407 [analogous federal rule "rests on two grounds . . . (1) The conduct is not in fact an admission, since the conduct is equally consistent with injury by mere accident or through contributory negligence[; and] (2) . . . a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety"]). The rule is not limited to physical repairs, but includes changes in procedure as well (see Brooks v Southampton Hosp., 200 AD2d 530, 530-531 [1st Dept 1994] [changes to hospital rules and regulations not discoverable, as they constitute subsequent remedial measures]).
As an initial matter, I note that the memo submitted in camera does not describe remedial measures actually undertaken by defendants, but rather encompasses the findings of an investigation into the facts and causes behind the incident, and sets forth some recommendations for the future. Whether or not such investigatory material is subject to the limitations on discovery or introduction at trial of post-accident remedial measures is a subject on which both federal and state courts are deeply divided (see Brazos River Authority v GE Ionics, Inc., 469 F3d 416 [5th Cir 2006] [noting that "courts are split" on the issue]). Some - apparently the majority - have opined that investigations into causation and recommendations for improvements only fall under the doctrine if they are actually carried out, viewing a prohibition covering the entire investigation as contrary to the broad scope generally allowed for discovery and admission of relevant evidence (see Brazos River Authority., 469 F3d at 430 [federal rule governing issue "prohibits evidence of measures, and those only if actually implemented, but does not proscribe discussions of causation and its relation to poor product performance"]; City of Bethel v. Peters, 97 P3d 822, 827 [Ak 2004] ["evidence of post-accident investigations and recommendations are not automatically excluded as subsequent remedial measures"]; see also 4 Jones on Evidence § 21:13 [7th ed.] ["most courts" interpreting FRE 407 and its "state equivalents . . . exclud[e] only evidence of the actual implementation of a safety improvement, but not the reports or memoranda that lead up to the improvements"]). Others have concluded that the same public policy of encouraging entities to address the causes of an accident underlying the limitations on disclosure of remedial steps taken also justifies protecting investigative materials against disclosure (see Maddox v City of Los Angeles, 792 F2d 1408, 1417 [9th Cir 1986] [investigation into incident under suit was part of "remedial measures taken after the incident" and covered by the prohibition]; Martel v Massachusetts Bay Transp. Authority, 403 Mass 1, 4  ["good public policy also requires the exclusion of the results of the defendant's investigation into the causes of an accident" as a "remedial safety measure"]).
I am unable to find any New York cases addressing the question.(1) For now, I will bracket the issue and presume for purposes of analysis that the memo may be treated as a subsequent remedial measure, with the issue to be revisited at the end of the opinion. I turn then, to the question of whether or not the bar on admission of remedial measures at trial precludes their disclosure in this instance.
The scope of disclosure is governed by CPLR 3101, which provides that "there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action," subject to certain delineated exceptions such as privilege. This rule is to be "interpreted liberally to require disclosure" and - in the absence of a governing exception - parties may discover "any facts bearing on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity." (Allen v Crowell-Collier Pub. Co., 21 NY2d 403, 406, ). This liberal standard can "require revelation of inadmissible testimony that may lead to discovery of admissible evidence" (Prink v Rockefeller Ctr., 48 NY2d 309, 314 n1  [allowing discovery of hearsay]; see also Shapiro v Levine, 104 AD2d 800, 800 [2d Dept 1984] [same] [citations omitted]; Fell v Presbyterian Hosp. in City of N.Y. at Columbia-Presbyt. Med. Ctr., 98 AD2d 624, 625 [1st Dept 1983] ["Pretrial disclosure extends not only to admissible proof but also to testimony or documents which may lead to the disclosure of admissible proof"]).
There is a conflict between the Appellate Division Departments as to how this standard should apply to discovery of post-accident repairs. The rule adopted by the Second Department is that "[e]vidence of subsequent repairs and remedial measures is not discoverable or admissible in a negligence case unless there is an issue of maintenance or control" (Del Vecchio v Danielle Assoc. LLC, 94 AD3d 941, 942 [2d Dept 2012] [citing numerous cases]; accord Soto v. CBS Corp., 157 AD3d 740, 741 [2d Dept 2018] [same; allowing disclosure because "an issue exists as to the identity of the entity responsible for the structural maintenance and control of" the accident location]). This action is based in the First Department, however, and that Court has made broader allowance for discovery of subsequent remedial measures. In particular, the First Department has found that postaccident repair records are discoverable for other purposes: to show the condition of the instrumentality that caused the accident at the time of the incident and prior to any modification(2)
(see Francklin v New York El. Co., Inc., 38 AD3d 329, 329 [1st Dept 2007]; Kaplan v Einy, 209 AD2d 248, 252 [1st Dept 2000]), as well as to show that a "particular condition was dangerous" (see Albino v New York City Hous. Auth., 52 AD3d 321, 321 [1st Dept 2008]).
Claimant here does not suggest that there is any dispute as to CUNY's control over the workshop or equipment in this case. But she does argue that the evidence is necessary to establish a dangerous condition. I find upon a review of the Report that - except as noted below - it meets the relevance standard of CPLR 3101 for this purpose, i.e., its contents bears on the question of the dangerousness of defendants' practices and procedures, to the extent that it may at very least assist the parties in preparation for trial on that issue. In so holding, I do not in any way rule on the admissibility of this document or any portion thereof at trial; such will be judged at the time of trial and in the context of the record as a whole. I find only that (except as noted below) the document is generally discoverable under the First Department caselaw governing subsequent remedial measures and the CPLR 3101 liberal standard.
There remains the question of whether any portion of the Report falls outside this general ruling. The Report can essentially be divided into three parts: (1) a description of the facts underlying the accident; (2) a set of fact-based conclusions regarding what happened; and (3) a series of recommendations for the future. The first of these is clearly discoverable. While the issue is less clear as to the second, it is relevant to the existence of a dangerous condition for the reasons set forth above, and thus must also be provided.
The third section, encompassing a list of forward-looking recommendations, is another matter. The underlying factual information and analysis of the event at issue provides any material that might be relevant for claimant regarding the issue of dangerousness. The list of proposed safety measures, however, runs headlong into the bar on post-accident remedies, and in any event have no apparent relevance to the matters in contention.
I note two wrinkles to this analysis. First, as discussed above, a majority of other jurisdictions (although not all) have held that recommendations that are never implemented do not fall under the "subsequent remedial measures" bar. Were I to find this analysis applicable under New York law, the recommendations (whose implementation is not disclosed under the papers before me) might fall outside the ambit of the doctrine.
But that is of no moment. There is no apparent relevance to the recommended remedial measures, that is not otherwise addressed by the factual description and analysis in the Report. In this regard, the issue before me is quite similar to that addressed in Stolowski v 234 E. 178th St., LLC, (89 AD3d 549 [1st Dept 2011]). In that case, plaintiff sought records of defendant's remedial repairs. The Court determined that they were not necessary to show a dangerous condition since "[t]he fire department's full investigation of the fire . . . provides evidence of the existence of a defective condition" (id. at 549-550). I glean from this that so long as the facts of an investigation furnish information describing the potential dangers of the underlying condition, the necessity and relevance of proposed remedies on the question of dangerousness ceases - and their only possible use is for the impermissible purpose of showing negligence based on the argument that defendants had failed to take such steps previously.
For these reasons, I need not resolve the complicated doctrinal question regarding treatment of investigatory materials on which the courts have split nationwide, nor need I launch into a factual inquiry on whether the recommendations were implemented. As regards this case, the disclosure of the sections of the document relating to what occurred in the incident in question provide sufficient disclosure - including discussion of possible dangerous conditions- without treading in any way into the concerns raised by disclosure of remedial recommendations.
Second, claimant has asserted that defendant's arguments against disclosure have been waived because the author of the Report spoke about them during his deposition. Claimant has not presented any portion of the deposition transcript, and thus I have no basis to determine whether specific recommendations have been disclosed in whole or in part. Further, waiver typically involves the partial revealing of information on a specific subject matter, and in particular the placement of privileged material at issue through selective disclosure (see American Re-Insurance Co. v United State Fid. & Guar., 40 AD3d 486, 492 [1st Dept 2007] [discussing waiver of attorney-client privilege]). I am presented no evidence that this occurred here. If at some point in the future (i.e. in dispositive motion practice or at trial) defendant makes use of Belgrave's deposition or other testimony in a manner that gives rise to a claim for waiver, claimant may revisit this issue at that time.
In sum, and in light of the foregoing, defendants are directed to provide claimant the Report within ten days of this Decision & Order, except that they shall redact the section entitled "Required Corrective Actions."
II. Last Known Address
Claimant's letter seeks the last known address and telephone number of student witness Timur Sayfulin. On a prior conference call, defendants indicated that they were trying to determine whether there is some restriction on this disclosure, with or without court order, but they have not brought any such bar to the Court's attention.
Mr. Sayfulin clearly has information relevant to this case. He was present at the accident scene, and his account is described in the postaccident report. I am unable to find any statutory ban to disclosure of the information sought. While revealing an individual's home address clearly implicates privacy concerns, those can be limited by a protective order restricting its dissemination (see Schenectady County Socy. for Prevention of Cruelty to Animals, Inc. v Mills, 74 AD3d 1417, [3d Dept 2010] ["While this Court has noted that [d]isclosing a person's home address implicates a heightened privacy concern, we have also ordered disclosure of home addresses [under FOIL] where the agency failed to provide proof that such disclosure fell within the personal privacy exemption"] [citations and internal quotation marks omitted]).
In light of the foregoing, defendants are directed to provide claimant within ten days of this opinion with any last known address of Mr. Sayfulin that is within defendants' possession custody and control, provided that such disclosure shall be made to claimant's counsel only, who shall use this information solely as necessary for this litigation, and shall otherwise maintain it as confidential.
May 2, 2019
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims
1. New York law restricts discovery of certain investigatory materials under a variety of other doctrines, such as work product protection and statutory limitations of quality assurance review (see Educ Law § 6527). The only barrier to disclosure raised by defendants here is that the Report reflects post-accident remedial efforts, and my discussion above is limited to that issue.
2. Given this authority, I decline to follow the case proffered by defendant, Alfieri, supra, which denied production of information on later remedial measures. Although the Alfieri Court's analysis is detailed and interesting, I ultimately find it to be unpersuasive. For one thing, the breadth of the prohibition on disclosure it is at odds with the appellate authority cited above. Moreover, Alfieri relied on the proposition (inconsistent generally with New York law) that "any evidence that is inadmissible at trial is also undiscoverable pretrial" (id. at 517). It derived that rule from the US Supreme Court decision in Bartholomew v Wood (516 US 1 ), in which the Court found no Brady violation in a prosecutor's failure to turn over inadmissible polygraphs. I do not agree that this ruling in a criminal case has any relevance for civil discovery in New York State.