Opinion
May 24, 1971
In a negligence action to recover damages for personal injuries sustained by plaintiff's decedent, plaintiff appeals (1) from an order of the Supreme Court, Queens County, dated October 16, 1970, which overruled plaintiff's objection on his examination before trial to disclosing the name and address of a witness to the accident and directed him and his attorney to furnish respondent's attorneys with such name and address, and (2) as limited by his brief, from so much of a further order of the same court, dated January 20, 1971, as, on reconsideration, adhered to the original determination. Appeal from order dated October 16, 1970 dismissed as academic. That order was superseded by the second order. Order dated January 20, 1971, affirmed. Respondent, Boylan Buick, Inc., is awarded a single bill of $10 costs and disbursements to cover both appeals. This action arose out of a claim based on the fact that plaintiff's decedent suffered injuries while riding as a guest in an automobile owned by respondent. The decedent instituted the action and, upon her death, the administrator of her estate was substituted as plaintiff. At the examination before trial of plaintiff, he was asked for the name and address of any witnesses to the accident. He replied that although the decedent had told him the name of a witness to the accident, a name obtained by the decedent at the scene of the accident, he could not remember the name and did not know the address. When asked if he would obtain the information from counsel, counsel objected. Upon oral argument before Special Term, plaintiff's attorney was directed to furnish defendant's attorney with the name and address of the witness. On reargument, plaintiff's counsel affirmed that the decedent, his client, had given him the name of the witness but that he had found out the witness' address as a result of his own investigation. No facts are alleged showing the extent of this investigation. Disclosure of the witness' name and address was resisted on the ground that the information represented material prepared for litigation and that it also represented a confidential communication from his client. Special Term adhered to its original determination. In Peretz v. Blekicki ( 31 A.D.2d 934) we held that a party should be required to disclose the identity of a witness to an accident if it appeared that such matter was not privileged under subdivisions (c) or (d) of CPLR 3101. In Varner v. Winfield ( 33 A.D.2d 807) we held that the identity of a witness was privileged if it was obtained as a result of an investigation after the happening of the accident (see Hartley v. Ring, 58 Misc.2d 618). Specifically exempted from this privilege was the identity of a witness which was obtained at the scene of the accident, since the identity could in no way be considered material prepared for litigation. It is conceded by plaintiff's counsel that the name of the witness was obtained by the decedent at the scene of the accident. Therefore it is not material prepared for litigation and is not privileged. The fact that the decedent did not obtain the witness' address does not make that item privileged, since all that is protected from disclosure by the Varner rule is knowledge gained by independent investigation with respect to a witness' having been an observer of the accident. Once the latter fact is obtained at the scene, the particulars of his identity do not come within the privilege. Appellant's argument that the witness' name is privileged because it was given as a confidential communication from a client is without merit. At the examination before trial, plaintiff testified that the decedent told him the name of the witness but that he had forgotten it. Where a client communicates information to third parties, the communication of the same information to his attorney is not privileged (cf. Brunswick Corp. v. Aetna Cas. Sur. Co., 27 A.D.2d 182; Doheny v. Lacy, 168 N.Y. 213, 223-224). Hopkins, Acting P.J., Shapiro, Gulotta, Christ and Benjamin, JJ., concur.