Fell v. Presbyterian Hospital , 98 A.D.2d 624 ( 1983 )

Order, Supreme Court, New York County (Stanley Parness, J.), entered October 13, 1982, denying so much of the motion and cross motion to direct plaintiff to produce the trust agreement under which decedent received yearly income to the time of his death in 1979, reversed, to the extent appealed from, on the law, the facts and in the exercise of discretion, without costs or disbursements, the motion and cross motion granted and plaintiff directed to produce said trust agreement within 10 days after service of a copy of the order to be entered on this appeal. The action was brought to recover damages for the wrongful death and the conscious pain and suffering of decedent, Philip Fell, who suffered cardiac arrest following a radium needle implant procedure performed at Columbia-Presbyterian Medical Center. Plaintiff alleged in her bill of particulars that decedent’s average annual earnings for the five-year period prior to his death ranged from $122,709 to $159,207, testifying at her examination before trial that her husband’s earnings during 1979, the year of his death, were approximately $250,000, all of which income was derived from family trust funds. Thereupon, defendants sought production of the trust agreement pursuant to which decedent received such income, admittedly his only income at the time of death. Plaintiff opposed the request, contending that the terms of the trust agreement were irrelevant to the issues in suit. We disagree with the refusal by Special Term to direct production of the trust agreement. The agreement may have a direct bearing upon the damage issues in the case, particularly where, as here, plaintiff’s bill of particulars appears to claim a substantial loss of income, derived not from salary but from “family money,” also defined as “trust funds.” To the extent that plaintiff claims a loss emanating from the trust income, it would be relevant, at the least for purposes of cross-examination and fhrther preparation for trial, for the defendants to inquire into the terms of the trust. By production of the agreement defendants will be afforded the opportunity to discover the terms of the trust so as to ascertain what occurred upon decedent’s death and whether plaintiff succeeded to the rights and interest of decedent as beneficiary, in whole or in part. The recoverable damages in a wrongful death action are limited to fair and just compensation for the “pecuniary injuries” suffered by the survivors of a decedent for whose benefit the action is brought (EPTL 5-4.3). Included as compensable damages are loss of support, services, voluntary assistance, the prospect of inheritance and medical and funeral expenses (Parilis v Feinstein, 49 NY2d 984; Gilliard v New York City Health & Hosps. Corp., 77 AD2d 532). In determining pecuniary loss, it is relevant to consider proof as to the age, character and condition of the decedent, his earning capacity, life expectancy, health and intelligence, as well as the circumstances of his distributees. Whether the trust income amounts to a collateral source or a “set-off” need not be resolved on this record. That issue is best reserved for resolution at trial or, at least, after the facts have been fully explored. Should it be established that the distributees have been deprived of trust income by reason of the death of the decedent, for example, if the trust income was now payable to some third party, clearly the terms of the trust would be material and relevant to the issues in suit. On the meager record before us, we cannot ascertain whether and to what extent plaintiff relies upon the loss of income from the trust. Suffice for the present purposes to observe that the terms of the trust may lead to discoverable evidence, a finding which under our liberal disclosure rules requires that the trust instrument be produced. Parties to an action are entitled to reasonable discovery “of 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.) CPLR 3101 (subd [a]), which permits discovery of “all evidence material and necessary in the prosecution or defense of an action,” has been most liberally construed, with the term “evidence” held to include that which is required in preparation for trial. Pretrial disclosure extends not only to admissible proof but also to testimony or documents which may lead to the disclosure of admissible proof (see Shutt v Pooley, 43 AD2d 59). As was there observed by Associate Justice (now Chief Judge) Cooke, “[i]f 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 [citing cases]”. (43 AD2d, at p 60.) Applying the test of “usefulness and reason” adopted by the Court of Appeals in Allen v CrowellCollier Pub. Co. (supra), we are in agreement that the appropriate preparation of the defense warrants production of the trust agreement under which decedent derived his sole income. Concur — Murphy, P. J., Asch and Kassal, JJ.