White v. Martins

Kupferman and Ross, JJ.,

dissent in a memorandum by Ross, J., as follows: I would affirm Special Term’s order. j| Early in the morning of May 23, 1981, Plaintiff Heather White (White), accompanied by a passenger, was operating her automobile eastbound on the Long Island Expressway, when the automobile stalled in the right-hand lane. Shortly thereafter, this stalled vehicle was struck in the rear by another automobile. The impact caused the plaintiff White’s automobile to burst into flames. White was severely burned and her passenger died from his burns. Subsequently, White and the administratrix of the passenger’s estate commenced actions for damages against a number of defendants, including the manufacturer Saab Scania (Saab Car Division), which is a Swedish corporation; the United States importer and distributor, Saab Scania of America, Inc.; and the seller of the plaintiff White’s car, Zumbach' Sport Cars Ltd. (Zumbach). Defendants Saab and Zumbach have served their answers. Plaintiffs have been deposed. While deposing John Mender (Mender), who is the vice-president in charge of Zumbach’s service department, plaintiff White’s attorney sought to go to Special Term to obtain rulings on questions which had been objected to and to which no answer had been given; but, Zumbach’s attorney, concededly, declined to appear at Special Term for such rulings. Thus, Zumbach moved for, inter alia, a protective order and plaintiff White cross-moved, inter alia, to strike Zumbach’s answer because of the alleged willful refusal of Mender to answer questions. Uln deciding these motions, Special Term examined the more than 400-page transcript of Mender’s deposition and concluded from that examination that “[i]t would appear that plaintiff White was impeded in the conducting of Zumbach’s examination.” Based upon Zumbach’s obstructionist tactics, Special Term was compelled to devise a solution which would dispose of the. discovery phase of this action as expeditiously as possible, so that this personal injury case, which is already three years old, would be able to proceed to trial. I Special Term directed, in pertinent part, Mender to answer all questions asked by plaintiff White, with all objections reserved to the trial court. In my opinion, Special Term, in its order, has struck the proper balance between defendant Zumbach’s legal objections and plaintiff White’s right to obtain information. Twenty years ago we said “[t]he purpose of disclosure procedures is to advance the function of a trial to ascertain truth” (Rios v Donovan, 21 AD2d 409, 411). It is hornbook law that appellate courts should not interfere with the management of pretrial discovery by Special Term. As a matter of policy, we, in this department, have followed that rule. Since there was no abuse of discretion, I find no justification for us to intervene in this case.