In this personal injury proceeding, plaintiff moves to compel further examination before trial of an employee of defendant regarding repairs made to the instrumentality that [*2]caused plaintiff's injury, to compel defendant to comply with discovery requests, and for costs associated with the further deposition of defendant's employee. Defendant opposes plaintiff's motion and cross moves for a protective order.

On September 13, 2007 plaintiff, a truck driver who transported petroleum products, was injured in the course of loading his truck with gasoline at defendant's petroleum storage and distribution terminal at the port of Rensselaer. Plaintiff alleges that the loading arm of the gas nozzle malfunctioned, which caused petroleum to spill onto plaintiff, causing injury. Plaintiff alleges in his complaint that defendant failed to maintain the gas pumps and nozzles in a reasonably safe condition.

Plaintiff now moves to compel further examination before trial of one of defendant's employees, and to compel defendant to comply with discovery requests. On July 29, 2009, the examination before trial of Michael Bowhall, defendant's terminal manager, was held. Bowhall testified that the head of the gas pump was taken out of service until there could be a determination of if it could be replaced, and also that he and other place of defendant inspected the head of the gas pump in question. Plaintiff's counsel then began questioning Bowhall regarding if the head of the gas pump was repaired or replaced in this line of questioning was objected to by defense counsel as impermissibly inquiring as to post-remedial measures. Defense counsel would not let Bowhall answer questions regarding whether the repair or replacement took place and if so who performed it, and also regarding what the inspection revealed and if a defect was discovered.

Additionally, plaintiff seeks responses to written discovery demands which sought production of inspection reports and documents relating to repair and maintenance for the gasoline pump head from December 2003 to present. Defendant has responded but has refused to produce documentation for dates after September 13, 2007, the date of plaintiff's accident.

Plaintiff argues that the information being sought is not sought to prove defendant's negligence, and plaintiff is not presently seeking a ruling that it would be admissible at trial. Plaintiff argues that without the information requested plaintiff will be unable to determine the condition of the pump head of the time of plaintiff's accident. Plaintiff argues that if the information sought is deemed discoverable by the Court, further depositions of other employees of defendant should be permitted as well as responses to outstanding and additional discovery demands. Plaintiff also seeks costs pursuant to 22 NYCRR 130-1.1 (a) because plaintiff alleges that defense counsel improperly directed her client not to answer questions in violation of 22 NYCRR 221.2(a).

Defendant now cross moves for a protective order and opposes plaintiff's motion. Defendant argues that the rule that evidence of repairs and remedial measures subsequent to an accident are not discoverable in a negligence case applies in the present situation. Defendant acknowledges that there are exceptions to this general rule, but argues that no [*3]exception applies because there is not an alleged defect in manufacture or an issue of maintenance or control. Defendant also argues that plaintiff's motion to compel cannot be granted to the extent that plaintiff failed to include a copy of the discovery request dated August 11, 2009. Defendant argues that it fully complied with plaintiff's discovery demands dated August 11, 2009. Defendant also argues that plaintiff's counsel was permitted to inquire at Bowhall's deposition regarding the condition of the pump and his inspection immediately following the accident. Defendant argues that questions regarding repairs are to prove negligence and should be prohibited.

In opposition to the cross-motion and in further support of plaintiff's motion, plaintiff submits a copy of the August 11, 2009 notice for discovery and inspection. Plaintiff notes that the August 11, 2009 notice sought information and reports generated by defendant during the month of September 2007 and therefore seeks information for a time period after plaintiff's accident. Plaintiff indicates that it is unclear whether defendants provided complete responses and plaintiff seeks full disclosure with regard to that demand, which had not been answered at the time the present motion was filed by plaintiff. Plaintiff also argues that while he was permitted to answer certain questions from plaintiff's counsel, he was not permitted to testify as to steps taken following his inspection. Plaintiff argues that he does not seek to use this information to prove negligence, as defendant argues. Plaintiff argues that information regarding what occurred after defendant's initial inspection is relevant so that plaintiff can understand how and why the accident occurred. The initial inspection did not reveal a problem, but the gas nozzle head was taken out of service and subsequently placed back in service, and plaintiff is unaware of what occurred after the initial inspection.

In reply, defendant argues that there was only one inspection conducted by defendant of the gas pump head in question, which occurred on the day after the accident. Defendant also notes that its response to plaintiff's notice for discovery and inspection dated August 11, 2009 was a complete response and reports for the entire month of September were provided. Defendant argues that the evidence regarding postaccident repairs and remedial measures sought by plaintiff is not discoverable in this negligence case. Defendant also argues that production of a privilege log would result in disclosure of the information sought to be protected.

First, regarding the August 11, 2009 notice for discovery and inspection of plaintiff, it appears based upon the submissions on the present motions that defendant responded completely to this demand. Based upon the affidavits of defendant's representative and defense counsel, averring that complete responses to the August 11, 2009 discovery demand of plaintiff have already been provided, the Court denies plaintiff's motion to compel with respect to the August 11, 2009 discovery demand.

With respect to the deposition questions and the other two discovery demands of plaintiff, the Court concurs with plaintiff that the information sought is discoverable regarding actions taken, and any repair or replacement to the instrumentality in question, [*4]in the time following plaintiff's accident from the time the accident occurred and continuing through the time period when the instrumentality was taken out of service and up to and including the time when it was placed back into service. The Court does not reach the issue of admissibility at this time, other than to note the general rule that post accident repairs or remedial measures will not be admissible to prove negligence at trial. The Court notes that plaintiff seeks this information to gain a full understanding of the reason for plaintiff's accident. The Court has considered that plaintiff has no other manner in which to ascertain the condition of the gas pump head in question at the time of plaintiff's accident. Under the circumstances, the Court finds that the information sought is discoverable (Francklin v New York Elevator Co., Inc., 38 AD3d 329 [1st Dept 2007]; Hayes v Peru Central Sch. Dist., 281 AD2d 794 [3d Dept 2001]; Kaplan v Einy, 209 AD2d 248 [1st Dept 1994]). Based upon the foregoing, the Court grants plaintiff's motion to compel and denies defendant's motion for a protective order, consistent with the findings above.

The Court declines to award costs or sanctions as requested by plaintiff because it does not find that defense counsel's conduct was frivolous in light of the good faith dispute as to whether the information at issue was discoverable.

Accordingly, it is

ORDERED, that plaintiff's motion is granted to the extent set forth above; and it is further

ORDERED, that defendant's cross-motion is denied.

This constitutes the Decision and Order of the Court. This Decision and Order is returned to the attorneys for the plaintiff. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

Dated:February, 2010

Troy, New York

________________________________________

Henry F. Zwack

Acting Supreme Court Justice