In this elevator drop case, plaintiff seeks an order striking the defendants' answer for their refusal to provide the repair ticket that was generated on the day of the accident, or in the alternative, plaintiff seeks an order compelling the defendants to provide the outstanding discovery.

"It is well settled that evidence concerning post-accident repairs is generally inadmissible absent certain exceptions and is never admissible as proof of admission of negligence." Fernandez v. Higdon El. Co., 220 AD2d 293 (lst Dept. 1995). However where there are issues of control and maintenance then this evidence is admissible and discoverable. Thus, in a seminal Second Department case the Court declared,"The cases are legion in holding that evidence of subsequent repairs is not discoverable or admissible in a negligence case . . . [except] if an issue of control and maintenance exists." Klatz v. Armor Elevator, 93 AD2d 633, 637(2d Dept., 1983). The Second Department has clung rather tenaciously to the Klatz doctrine in the ensuing years, refusing to allow the discovery of post accident repairs unless the circumstances of the case pose a question of maintenance or control. See e.g., Orlando v. City of New York, 306 AD2d 453(2d Dept. 2003);Watson v. FHE Services, Inc., 257 AD2d 618(2d Dept. 1999); Niemann v. Luca, (2d Dept. 1995).

Here, a perusal of the pleadings reveals that the defendants have denied control of the elevator in question and have denied allegations concerning the existence of a maintenance contact, referring all questions of law and fact to judge and jury. Thus, defense counsel's assertion in the affidavit interposed in opposition to this motion that "Mainco acknowledges that [*2]a contract for maintenance and repair was in effect at the time of the incident" does not eliminate the question of control insofar it does not constitute an admission that eliminates all issues of law and fact in this regard [particularly in the absence of a copy of the contract itself] and does not establish whether the defendants were in control of this elevator at the time of the incident. Cf. Steinel v. 131/93 Owners Corp., 240 AD2d 301(lst Dept. 1997). The repair ticket is relevant and material to the resolution of these issues and is thus discoverable.

However, this Court would further note that were control and maintenance not in issue, the relevance of materiality of this repair ticket in shedding light on the question of causation would warrant, at the very least, its discovery. Indeed, the highly technical nature of the issue of causation in an "elevator case" makes the information that is potentially available through this route extremely important.

Notably, The First Department in contradistinction to the Second Department appears to agree with this approach. Thus in Francklin v. New York El. Co., 38 AD3d 329(lst Dept. 2007), the Court held that "records of post accident repairs are discoverable subject to the proviso that they are not to be introduced at trial except upon a showing of relevance to the condition of the elevator at the time of the accident." See also Albino v. New York City Housing Authority, 52 AD3d 521(lst Dept. 2008)(evidence of repairs discoverable to show that a particular condition was dangerous); Longo v. Armor El. Co., 278 AD2d 127(lst Dept. 2000)(directing the production of reports of post accident repairs). See generally, Steinel v. 131/93 Owners Corp., supra, 240 AD2d 301(issues of maintenance, control, notice, or dangerous condition which may have permitted discovery of reports of post accident repairs, held not to be present in this case).

Indeed, in the wake of Second Department's decision in Klatz v. Armor Elevator, supra, 93 AD2d 633, a lower Court sitting in the Second Department opined that the "legion" of cases referred to in Klatz which held that evidence of subsequent repairs is not discoverable or admissible dealt solely with questions of admissibility rather than discovery. This court declined to follow Klatz opining that the record of a post accident repair could "shed light on the condition of equipment or machinery at the time of the accident." Giannelli v. Montomery Kone, 175 Misc 2d 32(Supreme Court, Westchester County, 1997).

However, principles of stare decisis mandate this Court to follow the appellate decisions of its Department. Accordingly, this Court must follow the Second Department line of cases and their rationale. Thus, as is the case here, where there are issues regarding maintenance or control, discovery of the repair ticket is permissible. Where these issues do not exist, this highly relevant piece of evidence would perforce need to be suppressed under governing Second Department precedent and might never come to light.

This Court believes that in so severely limiting the discovery of post accident repair tickets the commendable progress of the law in broadening of the scope of pre-trial discovery, see e.g., Mann ex rel. Akst v. Cooper Tire Co., 33 AD3d 24 (lst Dept. 2006), has suffered a serious set back and urges that Klatz v. Armor Elevator, supra, 93 AD2d 633, and its progeny be revisited in the appropriate circumstances and reconsidered and this limiting principle rejected.

The plaintiff's motion is granted to the extent that the defendants are directed to provide to plaintiff within ten days of the date of this decision the repair ticket and any related records prepared in connection with repair of the elevator in question in the aftermath of the alleged incident wherein the plaintiff was allegedly injured. [*3]

This constitutes the decision and order of the Court.

J.S.C.