STATE OF NEW YORK

SUPREME COURT : COUNTY OF CHAUTAUQUA


 

IN THE MATTER OF THE APPLICATION OF

RONALD WIDRIG AND TINA WIDRIG TO

COMPEL THE EXAMINATION BEFORE TRIAL AND

PRE-SUIT DISCLOSURE OF THE CITY OF

JAMESTOWN BOARD OF PUBLIC UTILITIES,

BOX 700, JAMESTOWN, NEW YORK 14702,

PRIOR TO INSTITUTING SUIT,


Petitioners,

Index #H10412


 



LEWIS & LEWIS, P.C.

Michael J. Skoney, Esq.

for Petitioners


RICHARD L. SOTIR, JR., ESQ.

Corporation Counsel for

City of Jamestown



DECISION and ORDER



GERACE, J.


Petitioners seek pre-suit disclosure of the Jamestown Board of Public Utilities (BPU) under CPLR 3120(C) in order to determine whether they "may" have a cause of action against any party other than the BPU, Ronald Widrig's employer.


Widrig was injured in a work related accident. He says that while he was trimming trees and limbs working in an aerial basket some 60 feet above the ground, a tree limb above him secured by a rope fell, smashing his hand.


The tree trimming operation was in connection with a project to install new wooden utility poles adjacent to the roadway and to attach telephone, CATV and electrical wires to poles jointly owned by Alltel, the telephone company, and the BPU.


Respondent BPU takes the position that an employee is not entitled to pre-suit disclosure of his employer under CPLR Section 3102(c) when he is prohibited from maintaining a cause of action in negligence against the employer under the Workers Compensation law.


The Fourth and Third Departments have held otherwise. In DAWN WEAVER, EXECUTRIX, V. WATERVILLE KNITTING MILLS, INC., 78 AD2d 574(4) the Fourth Department permitted pre-suit discovery of decedent's employer about facts surrounding the collapse of a loading dock which caused the death so petitioner could identify prospective defendants and frame her complaint.


Petitioner was permitted to inspect and copy records, reports and statements obtained and made in the course of the investigation of the accident.


In HUGHES V. WITCO CORPORATION-CHEMPRENE DIVISION, 175 AD2d 486, the Third Department allowed pre-suit discovery to enter petitioner's plant and inspect an industrial machine and business records relating to the machine. There was a question whether she was injured at a machine manufactured by someone else, or a machine that the employer designed.


It would appear that petitioner's motion should be granted. However, Rule 202.7 provides that an affidavit of a good faith effort to resolve the issue of discovery must accompany the motion.


Since no such affidavit was filed, this motion is dismissed, without prejudice.


This is the DECISION and ORDER of this Court. No further order shall be necessary.


Dated: January 11, 1995

Mayville, New York


 

JOSEPH GERACE

Justice of Supreme Court