Gunther v. Roaman's Inc.

Order entered March 21, 1966, unanimously modified, on the law* the facts, and in the exercise of discretion, without costs or disbursements to either party, to direct defendant to produce, at the forthcoming examination before trial, the report concerning the accident, which was not produced at the first examination. The order is further modified so as to strike the direction that defendant produce: (1) “An employee * * * who was an eyewitness to the accident and/or to an examination of plaintiff thereafter by a Doctor Herman Garnett * * (or) if no such witness, or witnesses are presently employed by defendant, to supply * * * the names and addresses of any such "former employees; (2) “ (an) employee having knowledge of corporate payments, concerning * * * a fee for medical service to said Doctor Garnett, and upon such examination any canceled cheek * * * or, a statement under oath * * that no such corporate payment was ever made.” As so modified the order affirmed. In directing the production of the report above referred to, we do not decide that it be introduced into evidence, marked as an exhibit, or that the plaintiff be permitted to inspect it. These matters will depend on whether the report is used at the examination and, if so, how it is used. The provision that the defendant furnish eyewitnesses to the accident and/or an examination by the doctor is stricken, since there was ample opportunity to obtain the information sought at the time of the first examination. That provision with respect to the production of a witness, having knowledge of payment to the doctor, and the requirement that the cheek in payment to the doctor be produced, is also stricken for the reason that at this point the materiality has not been shown. Settle order on notice. Concur — Botein, P. J., Rabin, Stevens and Steuer, JJ.