Opinion
October 16, 1961
In a negligence action to recover damages for personal injuries resulting from the collision of plaintiff's automobile with a city police car, plaintiff appeals from an order of the Supreme Court, Queens County, dated April 6, 1961, denying his motion for discovery and inspection of: (1) the records of the repair shop of the city Police Department which serviced the police car after the accident; (2) the towing record of the Police Department vehicle which towed the police car involved in the accident; (3) all photographs taken at the scene of the accident; and (4) the statement of a passerby taken by said Police Department at the scene of the accident. Order affirmed, with $10 costs and disbursements. The matters requested are not reports and records required by statute to be made and filed and, therefore, do not come within section 66-a Pub. Off. of the Public Officers Law ( Matter of Erenberg v. Brill, 10 A.D.2d 769). Discovery and inspection of the first three items mentioned may not be had under section 324 of the Civil Practice Act ( Briant v. New York City Tr. Auth., 7 A.D.2d 756; Faendrick v. Allied Aviation Serv. Int. Corp., 284 App. Div. 898; Ehrlich v. New York Cent. R.R. Co., 251 App. Div. 721; Falco v. New York, N.H. H.R.R. Co., 161 App. Div. 735). Nor may there be discovery and inspection of the statement of the witness ( Urbina v. McLain, 4 A.D.2d 589). It should also be noted that application under section 66-a Pub. Off. of the Public Officers Law should be made under article 78 of the Civil Practice Act, and not by motion in a negligence action (cf. Matter of New York Post Corp. v. Moses, 10 N.Y.2d 199). Beldock, Acting P.J., Kleinfeld, Christ, Pette and Brennan, JJ., concur.