Citations
- 14 A.D.2d 33
Full opinion text
Bastow, J. P.
The State appeals from that part of an order granting claimant the right to inspect and make photographs of a room in a State hospital wherein it is alleged claimant’s intestate met his death through the claimed negligence of the employees of the State. The sole issue presented is the authority of the court to grant such an inspection.
Prior to the enactment of the present Court of Claims Act (L. 1939, ch. 860) there was no authority for either an examination before trial by a claimant of officers or employees of the State or an inspection and discovery (Friedman v. State of New York, 161 Misc. 358, affd. 250 App. Div. 809, motion for leave to appeal denied 251 App. Div. 753). By the 1939 enactment (§ 17, subd. 2) a claimant was given the right to apply for an examination of an officer or employee of the State as an adverse party or of a witness. The subject was reviewed by Presiding Judge Barrett in Dunbar & Sullivan Dredging Co. v. State of New York (174 Misc. 743). It was held that subdivision 2 of section 17 referred only to an examination before trial and that there was no authority to grant a discovery and inspection under section 324 of the Civil Practice Act.
In 1946 the Judicial Council recommended the addition of a new section 17-a to the Court of Claims Act to permit the court to compel a discovery and inspection. It was pointed out that “ Public and municipal corporations were made subject to such remedy by an amendment to section 324 of the Civil Practice Act by Laws of 1945, Chapter 727. That desirable procedure should be extended by statute to apply to the State in claims brought against the State in the Court of Claims, thereby overcoming the present lack of power in such cases ” citing the Dunbar case (supra) (Twelfth Annual Report of N. Y. Judicial Council, 1946, p. 47). In 1947 the Council renewed its recommendation (Thirteenth Annual Report, 1947, p. 53).
A bill (Senate Int. No. 197, Print bio. 528), identical in language with proposed section 17-a contained in the 1946 Report of the Judicial Council, was passed by the Legislature but was vetoed without comment by the Governor (Public Papers of Gov. Dewey, 1947, p. 289). An examination of the contents of the bill jacket sheds interesting light on the subject. Among others, the Attorney-General, the Division of State Police and the Department of Mental Hygiene wrote vigorous letters to the Governor in opposition to the bill. The latter department stated that the legislation would £