contrasting Rule 35 and New York law
How later courts described this case
- contrasting Rule 35 and New York law
Written by the judges who cited it.
The opinion
Bergan, J. (concurring).
The affirmance of the order without prejudice to a renewal of the application to inspect defendant’s hospital records is the correct result on this record.
It is obvious the court does not intend to hold that the assertion of a physical cause for an accident, and denial of the assertion by a defendant, can never constitute a sufficient basis for inspecting defendant’s hospital records; because if this were its holding, it would have flatly cut off any possible inspection on this record and not have allowed renewal of the application.
The court seems to be holding that, on such renewal, if plaintiff shows sufficient facts to indicate there is a substantial basis for the claim defendant was intoxicated, inspection will be allowed since “ credence to the allegations of the plaintiff’s complaint ” seems crucial to the opinion, which adds that the mere *301 hearsay which is the basis of plaintiff’s present application is not enough.
That the party seeking the inspection must show sufficient factual ground to support it seems a reasonable rule; and if the opinion of the court is construed that way, it is consistent with the statute and the practice.
Chief Judge Fuld and Judges Burke, Breitel and Jasen concur ; Judge Bergan concurs in result in a separate memorandum.
Order affirmed, without costs and without prejudice to a new application upon a proper showing. Question certified answered in the affirmative.