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Wiseman v. American Motors Sales Corp.

Supreme Court of New York, Appellate Division, Second Department

August 27, 1984

No Number in Original

Opinion

 [*230] OPINION OF THE COURT

 [**530]  Plaintiff commenced this products liability action against American Motors Sales Corp. to recover damages for personal injuries allegedly sustained as a result of an accident involving a Jeep CJV, which defendant purportedly sold. Plaintiff claims that the jeep was defectively  [*231]  designed or negligently manufactured with respect to vehicular stability. According to the amended complaint, plaintiff was operating a Jeep CJV on Route KK in Camden County, Missouri, at approximately 1:00 a.m. on the morning of June 24, 1979. While driving at a normal rate of speed for the existing road and traffic conditions, the jeep "rolled over" when plaintiff made a right-hand turn.

During the course of its investigation, defendant obtained a copy of the accident report prepared by the deputy sheriff who responded to the scene of plaintiff's accident. In [***4]  the report, the author had checked two boxes adjacent to a list of potential factors that contributed to the accident. Among the factors checked were "Speed-Too Fast For Cond." and "Drinking". Under the heading "Driver Had Been Drinking," box number 2 labeled "Ability Impaired" had also been checked. The report also includes a detailed diagram showing the vehicle's position at each stage of the accident sequence. The diagram demonstrates that the driver of the vehicle was not required to make a right turn, because the accident occurred in a left-hand curve. According to a statement by the reporting officer, the "accident apparently occurred when vehicle #1 [the jeep], going south on Rt KK failed to negotiate a curve .3 miles north of highway 54. Driver of Vehicle #1 apparently ran off the road, overcorrected and rolled the vehicle 2 times, coming to rest in the northbound lane of traffic on Rt KK".

The author of the accident report, Deputy Sheriff J. K. Mason, resides in Jefferson City, Missouri. Since the accident report presented a version of the accident which contradicted plaintiff's portrayal and its author was not a resident of this State, defendant moved, pursuant [***5]  to CPLR 3108, for a commission to take the deposition of Mason in Missouri.

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103 A.D.2d 230 *; 479 N.Y.S.2d 528 **; 1984 N.Y. App. Div. LEXIS 19269 ***

Avram Wiseman, Respondent, v. American Motors Sales Corp., Appellant

Prior History:  [***1]  Appeal from an order of the Supreme Court at Special Term (Angelo D. Roncallo, J.), entered April 21, 1983 in Nassau County, which denied a motion by defendant to examine a nonresident, nonparty witness by commission, pursuant to CPLR 3108.

Disposition: Order of the Supreme Court, Nassau County, dated April 21, 1983, reversed, with costs, defendant's motion granted and matter remitted to Special Term for the purpose of issuing an open commission to a person before whom depositions may be taken in accordance with CPLR 3113.

CORE TERMS

disclosure, deposition, nonparty witness, discovery, notice, accident report, inadmissible, questions, subpoena, sheriff's deputy, special circumstance, depose, jeep

Civil Procedure, Discovery & Disclosure, General Overview, Discovery, Methods of Discovery, Inspection & Production Requests, Depositions, Oral Depositions, Written Depositions, International Law, Dispute Resolution, Evidence, Assistance Obtaining Evidence, Stipulations, Subpoenas, Disclosure, Sanctions, Foreign Discovery, Governments, Courts, Court Personnel, Relevance of Discoverable Information, Evidence, Procedural Matters, Preliminary Questions, Criminal Law & Procedure, Trials, Examination of Witnesses, Cross-Examination, Costs & Attorney Fees, Costs