-vs- Index #H10731




(Paul V. Webb, Jr., Esq.

of Counsel) for Petitioner



Petitioner, a temporary employee, has made an application for pre-action discovery against respondent to examine and photograph an automatic ladle a/k/a slide tool machine in order to determine whether he has a cause of action against the manufacturer for the personal injuries he sustained when his back and shoulder came into contact with the scoop during its normal cycle.

Pre-action discovery has been permitted against one's employer where there may be a cause of action against third parties. 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 a 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.

Petitioner's application cannot be granted on the papers before this Court. Rule 202.7 provides that an affidavit of a good faith effort to resolve the issue of discovery must accompany the motion. The cases hold that the effort must be more than a token effort. No such affidavit was filed here.

This rule makes sense. The employer here should have been given the opportunity to consider stipulating to permit sufficient discovery for petitioner to institute suit against the manufacturer of the machine without having to go to the expense of retaining attorneys to defend a formal motion. The time, effort and expense invested in this motion might better have been spent in a protective stipulation.

At the oral argument, petitioner's counsel outlined steps he had taken to get permission that included appearing at the plant with a camera to take photographs of the machine. The latter effort is not what is meant by "good faith effort", but even if there was such an effort, no affidavit was presented to the Court.

The application was originally made on the affidavit of plaintiff's counsel rather than someone with first hand knowledge of the facts. This is unacceptable under the law. See NICHOL V. TOWN OF ROTTERDAM, 134 AD2d 754, but, was cured by an affidavit of Petitioner himself on the return date of the motion.

Although the affidavit of counsel did not describe facts indicating petitioner had a cause of action per IN RE PELLEY, 43 MISC.2d 1082, 252 NYS2d 944, this, too, was cured by petitioner's affidavit on the return date of the motion.

Petitioner has expressed the fear that the machine is in the process of being dismantled.

This motion is dismissed, without prejudice. Falconer Die Cast is not to dismantle the machine until petitioner has had an opportunity to arrange voluntary or court ordered discovery, without stipulation or approval of this Court upon a letter request, with notice to petitioner.

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

Dated: January 11, 1995

Mayville, New York



Justice of Supreme Court