Gelber v. New York Central System ( 1971 )

Order unanimously reversed, without costs, and motion denied. Memorandum: on they sustained injuries as the result of the negligence of the defendant, while they were passengers on its railroad. They applied to Special Term for an order, pursuant to CPLR 3107, requiring defendant to produce an employee to be examined concerning the disposition of assets, special funds, agreements and proceeds set aside by defendant for payment of railroad passenger claims. Defendant admitted its liability and entered into settlement negotiations with plaintiffs, but the negotiations were discontinued after proceedings for defendant’s reorganization were filed June 21, 1970 in the District Court of the United States for the Eastern District of Pennsylvania. CPLR 3101 permits disclosure of all evidence material and necessary in the prosecution or defense of an action. The evidence sought herein by plaintiffs is not material in the prosecution of this ease and there is no authority for granting the order sought. CPLR 5223 authorizes disclosure of all matters relevant to the satisfaction of a judgment but it is not applicable since plaintiffs have not obtained a judgment. (Appeal from order of Erie (Special Term granting motion to examine.) Present — Marsh, J. P., Gabrielli, Moule, Cardamone and Henry, JJ.