Evidence of Post-Accident Elevator-Repairs Not Discoverable

The Second Department determined plaintiff, who was injured in an elevator accident, was not entitled to the post-accident elevator-repair records. Such records are only discoverable if there is a question about whether a defendant actually maintains or has control over an instrumentality, not the case here:

CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof” … . “[E]vidence of subsequent repairs is not discoverable or admissible in a negligence case” … . An exception to this rule applies if a defendant’s maintenance of, or control over, the subject instrumentality is at issue … .

Here, the plaintiff moved to compel production of post-accident repair records generated during the three-year period between the date of the plaintiff’s accident and the date of the inspection of the subject elevator by the plaintiff’s expert. Yet it is undisputed that the defendant exercised maintenance and control over the elevator. Graham v Kone, Inc., 2015 NY Slip Op 06111, 2nd Dept 7-15-15