D'Amato v. Schwartz

MacDonald, J.

The questions in the plaintiff’s motion for disclosure which have been objected to, have to do with the inspection and repair, by or in behalf of the owner of the adjacent premises, of a water box located in the sidewalk, and those portions of the sidewalk immediately surrounding the water box, where plaintiff claims to have fallen. The questions request dates and details of any such inspections or repairs made both before and after the accident in question. Defendant has objected on the stated ground that the information sought is irrelevant since it pertains to inspections and repairs that, as a matter of law, do not fall within his duties and which, accordingly, “are without relation to the issues raised as between the plaintiff and this defendant.”

The fixing of legal responsibility for maintenance of the water box itself must be determined from the facts, including those pertaining to original installation and subsequent repair. Evidence concerning inspection of and repairs to the water box and, of necessity, the particular portion of the sidewalk through which it protrudes will be produced at the trial and, even if portions thereof are excluded, it certainly will be necessary for defendant to attempt to make clear to the jury his claim that he had no legal duty to inspect or repair. This being so, it is difficult to see how he would be prejudiced in any way by having answers to the questions objected to in the file. The more information of this type is exchanged prior to actual trial, provided of course, it is not obviously irrelevant or otherwise objectionable, the shorter will be the trial —which is one of the prime purposes of the rule itself.

Defendant’s objections are overruled.