In Anderson v. State of New York, Arthur William Reece, Jr., drove his vehicle over a traffic counting device on the Long Island Expressway.  The device was missing a protective pole, shattered upon contact with the vehicle and punctured the vehicle’s gas tank, sparking a fire.  Tragically, Recce and his two children were trapped in the car and died in the fire.

The estate administrators for the children killed in the fire commenced a wrongful death action against the State of New York, and served a non-party subpoena on the County of Suffolk, seeking production of certified copies and transcripts of the 911 calls relating to the accident.  The County moved to quash the subpoena on the ground that, pursuant to County Law Section 308(4), 911 recordings and documents are not discoverable by any entity or person other than certain designated agencies and emergency medical providers.  The Supreme Court denied the motion, ordering the records to be produced and the County appealed.

In an issue of first impression, the Second Department held that the statute is not intended to prohibit disclosure of matter that is material and relevant in civil litigation.  Plaintiff argued that the tapes were relevant as to how the accident happened, the length of time the occupants experienced conscious pain and suffering, and the amount of time it took police to respond to the scene.  The Second Department agreed that the material was discoverable and affirmed the Supreme Court’s decision.

Thanks to Brett Kuller for his contribution to this post and please write to Mike Bono for more information.